{"id":17524,"date":"1968-03-27T00:00:00","date_gmt":"1968-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-anr-vs-p-sagar-on-27-march-1968"},"modified":"2016-05-01T21:23:30","modified_gmt":"2016-05-01T15:53:30","slug":"state-of-andhra-pradesh-anr-vs-p-sagar-on-27-march-1968","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-andhra-pradesh-anr-vs-p-sagar-on-27-march-1968","title":{"rendered":"State Of Andhra Pradesh & Anr vs P. Sagar on 27 March, 1968"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Andhra Pradesh & Anr vs P. Sagar on 27 March, 1968<\/div>\n
Equivalent citations: 1968 AIR 1379, \t\t 1968 SCR (3) 565<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nSTATE OF ANDHRA PRADESH & ANR.\n\n\tVs.\n\nRESPONDENT:\nP. SAGAR\n\nDATE OF JUDGMENT:\n27\/03\/1968\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nRAMASWAMI, V.\nMITTER, G.K.\n\nCITATION:\n 1968 AIR 1379\t\t  1968 SCR  (3) 565\n CITATOR INFO :\n RF\t    1971 SC2303\t (25)\n R\t    1972 SC1375\t (33,64,80,87,92)\n F\t    1973 SC 930\t (22)\n RF\t    1975 SC 563\t (14,21)\n F\t    1985 SC1495\t (60,63,119,114)\n\n\nACT:\nConstitution of India, Art. 15(1) and (4)-State preparing  a\nlist  of  backward classes within the meaning -of  cl.\t(4)-\nClaiming  to  have  done so on advice of  experts  who\twere\nsatisfied-relevant  tests  were\t applied  Not  placing\t any\nmaterial before court to consider validity of list which ex-\nfacie  included 'castes' and not classes-Whether  court\t can\nhold such list as valid.\n\n\n\nHEADNOTE:\nBy an order of the State Government, Andhra Pradesh,  issued\non  July  29,  1966, 20% of the total number  of  seats\t for\nadmission  to medical colleges in the State  were  reserved,\nfor  members  of the backward classes described\t in  a\tlist\nprepared  by the Government.  This order and the  list\twere\nchallenged  in writ petitions before the High Court on\tthe,\nground\tthat another list published by the State  Government\non  June  21,  1963 determining\t backward  classes  for\t the\npurpose of Art. 15(4) of the Constitution had been  declared\ninvalid\t by  the  High Court in an  earlier  case  as  being\nviolative  of  Art. 15(1); it was contended that  the  State\nGovernment  had\t adopted  substantially\t the  same  list  of\nbackward  classes with slight modifications and as  the\t new\nlist  also made the reservation in favour of castes and\t not\nclasses,  it infringed the guarantee under Art.\t 15(1).\t  On\nbehalf\tof the State Government it was urged that  caste  is\none  of the relevant tests in determining backwardness,\t and\ncannot be ignored in determining socially and  educationally\nbackward  classes  and\tif a group has\tbeen  classified  as\nbackward    on\t  other\t  relevent    considerations,\t the\nclassification is not liable to be challenged as invalid  on\nthe  ground  that  for\tthe  purpose  of  classifying,\t the\ndesignation  of\t caste\tis-given.   It\twas  stated  in\t  an\naffidavit on behalf of the State that the new list had\tbeen\nprepared  by  a Cabinet sub-committee  and'approved  by\t the\nCabinet\t after a detailed enquiry of the conditions  of\t the\ncastes\tin question and on expert advice of the Director  of\nSocial\tWelfare\t as well as under the guidance\tof  the\t Law\nSecretary;  and\t that  they were  both\tsatisfied  that\t the\ncorrect\t tests\twere  applied in the  determination  of\t the\nbackward classes.  The High Court held that the reservations\nof  seats for the members of the backward classes  described\nin  the list prepared by the Government were in-,-Aid.\t The\nState appealed to this Court by special leave.\nHELD:dismissing the appeal,\nThe  impugned list prepared by the State was ex-facie  based\non castes or communities and wag substantially the same list\nwhich  bad been struck down by the High Court as invalid  in\nthe earlier case.  No materials were placed on the record to\nenable\tthe Court to decide whether the criteria  laid\tdown\nfor  determining  that the list prepared by  the  Government\nconformed  to  the requirements of cf. (4) or Art.  15\twere\nfollowed.\nArticle\t 15  guarantees by the first  clause  a\t fundamental\nright of farreaching importance.  Clause (4) is an exception\nengrafted  upon the guarantee in cl. (1), but being  id\t the\nnature\tof an exemption conditions which  justify  departure\nmust  be strictly shown to exist.  When a dispute is  raised\nbefore a Court that a particular. law which is\tinconsistent\nwith  the guarantee against discrimination is valid  on\t the\nplea that it is permitted\n596\nunder  cl. (4) of Art. 15, the mere assertion by  the  State\nthat the officers of the State had taken into  consideration\nthe  criteria  which  had been adopted\tby  the\t courts\t for\ndetermining  who  the socially\tand  educationally  backward\nclasses\t of  the Society are, or that  the  authorities\t had\nacted  in  good\t faith\tin  determining\t the  socially\t and\neducationally  backward\t classes of citizens, would  not  be\nsufficient  to\tsustain\t the validity of the  claim.   If  a\nquestion arises whether a law which prima facie infringes  a\nfundamental  right is within an exception, the\tvalidity  of\nthat  law  has to he determined by the courts  on  materials\nplaced\tbefore them.  By merely asserting that the  law\t was\nmade  after full consideration of the relevant evidence\t and\ncriteria  which have a bearing thereon, and was\t within\t the\nexception,  the\t jurisdiction  of the  courts  to  determine\nwhether\t by  makinig the law a fundamental  right  has\tbeen\ninfringed is not excluded. [603 C-G].\nCase law referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1336 of 1967.
\nAppeal\tby special leave from the judgment and\torder  dated
\nOctober\t 7,  1966 of the Andhra Pradesh High Court  in\tWrit
\nPetition No. 1268 of 1966.\n<\/p>\n
P. Ram Reddy and A. V. V. Nair, for the appellants.
\nK.Narayana Rao and G. Narayana Rao, for the intervener.
\nThe Judgment of -the Court was delivered by
\nShah,  J.  Against the order passed by the  High-  Court  of
\nAndhra\tPradesh\t declaring  invalid  the  “reservation\t for
\nbackward  classes under Rule 4A and 5A respectively  of\t the
\nTelangana  and\tthe  Andhra Rules,  and\t the  directions  in
\nrespect\t of  the  President’s Scouts  and.   Guides”,  under
\nGovernment  orders  Nos.  1135\t&  1136-Health,\t Housing   &
\nMunicipal Administration Department dated June 16, 1966,  as
\nmodified  by  G.O.  M.S. 1880 dated July 29,  1966  for\t the
\nTelangana region, and by G.O.M.S. 1786 dated August 2,\t1966
\nfor  the  Andhra  Region, the State of\tAndhra\tPradesh\t has
\nappealed to this Court with special leave.
\nThe State of Andhra Pradesh is divided into two areas-Telan-
\ngana and Andhra areas.\tIn the Telangana area there are\t two
\nMedical\t Colleges  having  in the aggregate  270  seats\t for
\nentrants to the medical degree course.\tIn Andhra area there
\nare four Medical Colleges having in the aggregate 550  seats
\nfor  new entrants.  In admitting candidates for the  medical
\ndegree course by Government orders Nos. 1135 & 1136  Health,
\nHousing\t and Municipal Administration Department dated\tJune
\n16,  1966,  seats  were\t reserved  for\tCentral\t  Government
\nnominees, for N.C.C., A.C.C President’s Scouts & Guides, for
\ncandidates with sports and extracurricular proficiency,\t for
\nchildren  of  ex-Service  army personnel,  for\tchildren  of
\ndisplaced  goldsmiths, for candidates from Scheduled  Castes
\nand -Tribes, for women candidates, for candidates  appearing
\nfrom H.S.C. Multipurpose I.S.C. & P.U.C. Examinations,
\n597<\/span>
\nand  for  candidates who had secured the M.Sc. &  B.Sc.\t de-
\ngrees.\t By Government order No. 1880 dated July  29,  1966,
\ntwenty per cent. of the total number of seats were  reserved
\nfor backward classes in each area, and pursuant thereto\t the
\nTelangana  Rules were amended by G.O. M.S.  No.\t 1784-Health
\nand  the  Andhra Rules were amended by G.O. M.S.  No.  1783-
\nHealth dated August 2, 1966.  The Validity of the Government
\norders\tNos. 1135 & 1136 was challenged on the\tground\tthat
\nthey  infringed\t the fundamental freedoms  guaranteed  under
\nArts. 15(4), 16(4) and 29(2) of the Constitution.  The\tHigh
\nCourt  held  that  in reserving seats for  nominees  of\t the
\nCentral\t Government  and  from other  States,  for  cultural
\nscholars,  for\twomen, for graduates and for  students\tfrom
\nH.S.C.\t &  P.U.C.  Courses,  no  fundamental  rights\twere
\ninfringed, but the reservations for members of the  backward
\nclasses described in the list prepared by the Government  of
\nAndhra Pradesh were invalid.\n<\/p>\n
By  Art. 15 of the Constitution, as originally\tenacted,  it
\nwas provided that
\n\t      “(1) The State shall not discriminate  against
\n\t      any citizen on grounds only of religion, race,
\n\t      caste, sex, place of birth or any of them.\n<\/p>\n
\t      (2)…………………………….
\n\t      (3)Nothing  in this article  shall  prevent
\n\t      the  State from making my\t special  provisions
\n\t      for women and children.”\n<\/p>\n
\t      Article 29(2) provided that
\n\t      “No citizen shall be denied admission into any
\n\t      educational  institution\tmaintained  by\t the
\n\t      State  or receiving aid out of State funds  on
\n\t      grounds\tonly  of  religion,   race,   caste,
\n\t      language or any of them.\n<\/p>\n
By  Art.. 46, which occurs in Ch.  IV relating to  Directive
\nPrinciples  of\tState  Policy, the  State  was\tenjoined  to
\npromote the educational and economic interests of the weaker
\nsections  of the people, but Arts.’ 15 and 29 as  originally
\nframed\tprohibited the making of,any discrimination  against
\nany citizen on grounds only of religion,, race, caste,\tsex,
\nplace,\tof birth or any of them.  In the State of Madras  v.
\nShrimati  Champakam  Dorairajan<\/a>(1) an order  issued  by\t the
\nGovernment of the State of Madras fixing the number of seats
\nfor  particular communities for selection of candidates\t for
\nadmission  to  the Engineering and Medical Colleges  in\t the
\nState  was  challenged on the ground that  it  violated\t the
\nguarantee   against  d\tcrimination  under  Art.  25(2)\t  of
\nthe”Constitution.  This Court held that the Government order
\nconstituted a violation of the
\n(1) [1951]  S.C.R. 525.\n<\/p>\n
598<\/span><\/p>\n
fundamental  right  guaranteed to the citizens of  India  by
\nArt.   29(2)  of  the  Constitution,   notwithstanding\t the
\ndirective principles of State policy laid down in Part IV of
\nthe Constitution.  The Part thereafter added cl. (4) in Art.
\n15,  by\t the  Constitution  (First  Amendment)\tAct,   1951,
\nproviding that:\n<\/p>\n
\t      “Nothing\tin this article or in clause (2)  of
\n\t      article 29 shall prevent the State from making
\n\t      any  special provision for the advancement  of
\n\t      any   socially  and   educationally   backward
\n\t      classes  of  citizens  or\t for  the  Scheduled
\n\t      Castes and the Scheduled Tribes.”\n<\/p><\/blockquote>\n
On  July 31, 1962, the State of Mysore, in  supersession  of
\nall previous orders made under Art.  I 5(4) divided backward
\nclasses\t into  two categories : backward  classes  and\tmore
\nbackward  classes,  and reserved 68%- of the  seats  in\t the
\nEngineering   and  Medical  Colleges  and  other   technical
\ninstitutions  for  the educationally and  socially  backward
\nclasses\t and the Scheduled Castes and Scheduled Tribes,\t and
\nleft  32%  seats  for  the  merit  pool.   That\t order\t was
\nchallenged by a group of writ petitions under Art. 32 of the
\nConstitution before this Court.\t This Court in M. R.  Balaji
\n&  others v. State of ‘Mysore(1) held that the order  passed
\nby  the State of Mysore “was a fraud on\t the  constitutional
\npower  conferred on the State by Art. 15(4)” and was  liable
\nto  be quashed, because the order categorised,\tcontrary  to
\nthe plain intendment of Art. 15(4), the backward classes  on
\nthe  sole  basis of caste.  A similar order  G.O.  M.S.\t No.
\n1880-Health  issued by the State of Andhra Pradesh  on\tJune
\n21,  1963,  notifying a list of castes for  the\t purpose  of
\nselecting  candidates  from  the  backward  classes  in\t the
\nMedical Colleges in the State of Andhra Pradesh was declared
\ninvalid\t by the High Court of Andhra Pradesh on\t the  ground
\nthat the order which classified the backward classes  solely
\non the basis of caste subverted the object of Art. 15(4)  of
\nthe  Constitution  :  see  P. Sukhadev\tand  others  v.\t The
\nGovernment of Andhra Pradesh (2).\n<\/p>\n
On February 3, 1964, the. previous order issued by the State
\nof  Andhra Pradesh was cancelled.  Thereafter it is  claimed
\nby  the’  State\t of Andhra Pradesh that\t it  took  steps  to
\nprepare\t a fresh list of backward classes consistently\twith
\nthe provisions of the Constitution.  The Chief Secretary  of
\nthe Government of Andhra Pradesh has sworn in his  affidavit
\nthat  the Council of Ministers appointed a Sub-Committee  to
\ndraw  up  a list of backward classes, inter  alia,  for\t the
\npurpose\t of admission of students to professional  Colleges.
\nThe Committee invited the Law Secretary and the Director  of
\nSocial\tWelfare to attend the meetings of the  Sub-Committe,
\nand  letters  were written to the other States\tcalling\t for
\ninformation  about the criteria adopted by those States\t for
\ndetermining  backward classes for purposes of Am. 15(4)\t and
\n16(4) of the
\n(1) [1963] Supp.  1 S.C.R. 439.\n<\/p>\n
(2) (1966) 1 Andbra W.R. 294.\n<\/p>\n
599<\/span><\/p>\n
Constitution,  that after considering the  replies  received
\nfrom  the  Chief Secretaries of the various  States  it\t was
\nresolved  ‘that\t the  existing\tlist  of  backward   classes
\npertaining to Andhra and Telangana areas he scrutinised with
\na  view\t to  selecting\tfrom  that  list  those\t castes\t  or
\ncommunities which are “considered backward on account of the
\nlow  standard  of  living,  education,\tpoverty,  places  of
\nhabitation, inferiority of occupations followed etc “;\tthat
\nat  another  meeting it was resolved that the, list  of\t 146
\nbackward communities prepared by the Director be  rearranged
\nin  “the  order\t of priority in consultation  with  the\t Law
\nSecretary,  taking into consideration the criteria given  by
\nLaw  Secretary in his note to the Cabinet Sub-Committee\t and
\nthat  in doing so such of the criteria as capable  of  being
\npractically  possible  for consideration may be\t taken\tinto
\naccount”, and accordingly the Law Secretary and the Director
\nof  Social  Welfare considered the representations  made  by
\ncertain communities to the Government from time to time\t and
\n“drew  up a list of the order of priority as called  for  by
\nthe Cabinet Sub-Committee”, that thereafter the Cabinet Sub-
\nCommittee made its recommendations which were considered  by
\nthe  Council  of  Ministers on July 4, 1966,  and  that\t the
\nCouncil of Ministers considered the social, educational\t and
\neconomic  conditions  of the backward classes named  in\t the
\nlists  submitted  to them, and dealt  with  each  individual
\nclass  and  deleted certain items or classes in\t the  lists,
\nchanged\t the denomination of certain classes “for  the\tmore
\npremise\t effectuation of concessions to those  classes\tonly
\nwho really need them”, and consolidated the backward classes
\ninto  one list, ruling out the priorities suggested  by\t the
\nDirector of Social Welfare in accordance with the opinion of
\nthe   Cabinet\tSub-Committee,\tand   thereafter   published
\nresolution  No. G.O. 1880 pursuant to which the\t rules\twere
\namended reserving 20% of the seats for the backward  classes
\nmentioned in the list prepared by the Cabinet of the State.
\nThe list prepared on the basis of reservations for  socially
\nand  educationally backward classes is indisputably  a\tlist
\ncommunity  wise.   On  behalf  of  the\tpetitioners  it\t was
\ncontended  in the High Court that the Government  of  Andhra
\nPradesh had adopted the same list of backward classes  which
\nwas  struck  down by the High Court in P.  Sukhadev’s  caw()
\nwith some slight modifications and the new list also  having
\nmade  a reservation in favour of castes and not classes,  it
\ninfringed the guarantee Under Art. 15(1).  On behalf of\t the
\nState  it was urged that caste is one of the relevant  tests
\nin  determining\t backwardness,\tand  cannot  be\t ignored  in
\ndetermining the socially and educationally backward classes:
\nif a group has been classified as backward on other relevant
\nconsiderations,\t the  classification  is not  liable  to  be
\nchanged\t as  invalid on the ground that for the\t purpose  of
\nclassifying,the\t designation of caste ‘is given.   The\tHigh
\nCourt held that the earlier G.O. was struck down
\n(1)  (1966) 1 Andhra W.R. 294.\n<\/p>\n
600<\/span><\/p>\n
in P. Cukhadev’s case(‘) on the ground that it was based  on
\ncaste  alone, and since the G.O. under challenge  was  again
\nprepared  on  the same basis it could not  be  sustained  as
\nfalling\t  within,the  exception\t provided  in  Art.   15(4).
\nCounsel for the State contends that the High Court erred  in
\nholding that the impugned rules reserving seats for backward
\nclasses made caste the determining factor.
\nIn  the\t context in which it occurs the\t expression  “class”
\nmeans  a homogeneous section of the people grouped  together
\nbecause\t of certain likenesses or common traits and who\t are
\nidentifiable by some common attributes such as status, rank,
\noccupation, residence .in a locality, race, religion and the
\nlike.\tIn determining whether a particular section forms  a
\nclass,\tcaste  cannot be excluded altogether.\tBut  in\t the
\ndetermination of a class a test solely based upon the  caste
\nor  community cannot also be accepted.\tBy cl. (1), Art.  15
\nprohibits the State from discriminating against any  citizen
\non  grounds  only of religion, race, caste,  sex,  place  of
\nbirth or any of them.  By cl. (3) of Art., 15 the State\t is,
\nnotwithstanding\t  the  provision  contained  in\t  cl.\t(1),
\npermitted to make special pro,vision for women and children.
\nBy  cl. (4) a special provision for the advancement  of\t any
\nsocially  and educationally backward classes of citizens  or
\nfor the Scheduled Castes and Scheduled Tribes is outside the
\npurview of cl. (1).  But cl. (4) is an exception to cl. (1).
\nBeing an exception, it cannot be extended so as in effect to
\ndestroy\t the  Guarantee of cl. (1).  The Parliament  has  by
\nenacting  cl. (4) attempted to balance as against the  right
\nof  equality  of  citizens the special\tnecessities  of\t the
\nweaker sections of the people by allowing a provision to  be
\nmade  for  their advancement.  In order that effect  may  be
\ngiven  to cl. (4), it must a pear that the beneficiaries  of
\nthe  special  provision\t are  classes  which  are   backward
\nsocially and educationally and they are other than the Sche-
\nduled  Castes and Scheduled Tribes, and that  the  provision
\nmade .is for their advancement.\t Reservation may be  adopted
\nto advance the interests of weaker sections of society,\t but
\nin  doing so, care must be taken to see that  deserving\t and
\nqualified  candidates are -not excluded from  admission,  to
\nhigher\t educational   institutions.   The   criterion\t for
\ndetermining-the\t backwardness  Must not be based  solely  on
\nreligion,  race,  caste, sex, or place of  birth,  and,\t the
\nbackwardness  being social, and educational must be  similar
\nto the backwardness from which the Scheduled Castes and\t the
\nScheduled  Tribes  suffer.  These are the  principles  which
\nhave been enunciated in the decision of this Court in.M.  R.
\nBalaji’s  case(3) and R. Chitralekha & Another v.  State  of
\nMysore.and.  others<\/a>(2).\t  In  R.  Chitralekha’s\t case\t(2),
\nSubba  Rao,  J.,  speaking for the  majority  of  the  Court
\nobserved at p. 388
\n(1) (1963) Supp.1 S.C.R.439..\n<\/p>\n
(2) (1964) 6 S.C.R.368
\n601<\/span>
\n.lm15
\n“The important factor to be noticed in Art. 15(4) is that it
\ndoes  not speak of castes, but only speaks of  classes.\t  If
\nthe makers of the Constitution intended to take castes\talso
\nas units of social and educational backwardness, they  would
\nhave said so as they have said in the case of the  Scheduled
\nCastes and the Scheduled Tribes.  Though it may be suggested
\nthat  the wider expression “cLasses” is used in cl.  (4)  of
\nArt.  15  as there are communities without  castes,  if\t the
\nintention  was\tto  equate  classes  with  castes,   nothing
\nprevented  the\tmakers of the constitution  from  using\t the
\nexpression “backward classes or castes’.  The  juxtaposition
\nof the expression “backward classes” and “Scheduled  Castes”
\nin Art. 15(4) also leads to a reasonable inference that\t the
\nexpression “classes” is not synonymous with castes.  It\t may
\nbe that for ascertaining whether a particular citizen or a
\ngroup of citizens belong to a backward class or not, his  or
\ntheir caste may have some relevance, but it cannot be either
\nthe  sole  or the dominant criterion  for  ascertaining\t the
\nclass to which he or they belong.”\n<\/p>\n
In  a recent judgment of this Court P. Rajendran &  Ors.  v.
\nThe  State of Madras and others<\/a>(‘), Wanchoo, C.J.,  speaking
\nfor the Court observed :\n<\/p>\n
“. . . if the reservation in question had been based only on
\ncaste  and  had\t not  taken  into  account  the\t social\t and
\neducational backwardness of the caste in question, it  would
\nbe  violative of Art. 15(1).  But it must not  be  forgotten
\nthat a caste is also a class of citizens and if the caste as
\na  whole is socially and educationally backward\t reservation
\ncan be made in favour of such a caste on the ground that  it
\nis  a socially and educationally backward class of  citizens
\nwithin,\t the meaning of Art. 15(4). It is true that  in\t the
\npresent\t cases\tthe  list  of  socially\t and   educationally
\nbackward classes has been specified by caste.  But that does
\nnot  necessarily mean that caste was the sole  consideration
\nand  that persons belonging to these castes are also  not  a
\nclass of socially and educationally backward citizens.”
\nThat case makes no departure from the rule enunciated in the
\nearlier cases.\n<\/p>\n
The  list  dated June 21, 1963, of castes  prepared  by\t the
\nAndhra Pradesh Government to determine backward classes\t for
\nthe  purpose of Art. 15(4) was declared invalid by the\tHigh
\nCourt of’ Andhra Pradesh in P. Sukhadev’s case(‘).  A  fresh
\nlist  was  published  under  the  amended  rules  with\tsome
\nmodifications, but the
\n(1) [1968] 2 S.C.R. 786.\n<\/p>\n
(2) [1966] 1 Andhra W.R. 294.\n<\/p>\n
602<\/span><\/p>\n
basic scheme of the list was apparently not altered.  It  is
\ntrue that the affidavits filed by the Chief Secretary in the
\nHigh Court and the Director of Social Welfare in this  Court
\nhave  set  out\tthe steps taken for  preparing\tthe  Est  of
\nbackward classes.  It is also stated in the affidavit of the
\nDirector   of\tSocial\tWelfare\t that  he   considered\t the
\nrepresentations made to him, consulted the Law Secretary and
\ncertain\t publications  relating\t to the\t study\tof  backward
\nclasses\t e.g. – Thurston’s “Caste and Tribes”  and  Sirajul-
\nHasan’s\t “Castes and Tribes”, and made\this  recommendations
\nwhich  were modified by the Sub-Committee appointed  by\t the
\nCouncil of Ministers and ultimately the Council of Ministers
\nprepared  a final list of backward classes.  But before\t the
\nHigh Court the materials which the Cabinet Sub-Committee  or
\nthe Council of Ministers considered were not placed, nor was
\nany evidence led about the -criteria adopted by them for the
\npurpose of determining the backward classes.  The High Court
\nobserved :\n<\/p>\n
\t      “A   perusal   of\t  this\t affidavit    (Chief
\n\t      Secretary’s affidavit) as well as that of\t the
\n\t      Director\tof  Social Welfare,.  .\t .which\t are
\n\t      filed  on behalf of the Government do not\t say
\n\t      what  was\t the  material\tplaced\tbefore\t the
\n\t      Cabinet\tSub-Committee  or  the\tCouncil\t  of
\n\t      Ministers,  from which we could conclude\tthat
\n\t      the  criteria laid down by their Lordships  of
\n\t      the   Supreme  Court  have  been\tapplied\t  in
\n\t      preparing the list of backward classes.\n<\/p>\n
After referring to the opinion of the Law Secretary and\t the
\nviews ,of the Director of Social Welfare they observed:\n<\/p>\n
\t      “…. We are not able to ascertain whether any
\n\t      material, and if so, what material was  placed
\n\t      before  the Cabinet Sub-Committee, upon  which
\n\t      the  list of backward classes was\t drawn.\t  On
\n\t      the  other hand, it is stated -that  the-\t Law
\n\t      Secretary\t and the Director of Social  Welfare
\n\t      sat  together and drew up a list,\t the  former
\n\t      specifying  the  legal  requirements  and\t the
\n\t      latter as an expert advising on the social and
\n\t      educational backwardness of class or classes.”\n<\/p><\/blockquote>\n
It was urged before the High Court that expert knowledge  of
\nthe Director of Social Welfare and of the Law Secretary\t was
\nbrought\t to  bear  upon the consideration  of  the  relevant
\nmaterials  in  the  preparation of the list  and  they\twere
\nsatisfied  that\t the  correct  tests  were  applied  in\t the
\ndetermination  of backward classes and on that -account\t the
\nlist  should be accepted by the High Court.  The High  Court
\nin dealing with the argument observed:\n<\/p>\n
\t      “….   the  impugned  backward  classes\tlist
\n\t      cannot  be and has not been sustained by\tthe-
\n\t      Government as
\n603<\/span>
\n\t      coming  within the exception provided in\tArt.
\n\t      15(4)  on\t any  material\tplaced\tbefore\tthis
\n\t      Court.   In fact, there is a total absence  of
\n\t      any  material, from which we can say that\t the
\n\t      Government applied the criteria enunciated  by
\n\t      their  Lordships of the Supreme Court  in\t the
\n\t      above referred cases, in preparing the list of
\n\t      backward\t classes.   We\tcannot\taccept\t the
\n\t      contention  of  the learned  Advocate  General
\n\t      that “once there is proof that the  Government
\n\t      bona   fide  considered  the  matter   it\t  is
\n\t      sufficient”.   Acceptance\t of  this   argument
\n\t      would  make for arbitrariness,  absolving\t the
\n\t      party on whom the burden of proof to bring  it
\n\t      within  the exception rests, from proving\t it.
\n\t      The  mere fact that the act is bona  fide\t and
\n\t      that there was total absence of mala fides, is
\n\t      not relevant.”\n<\/p><\/blockquote>\n
Article\t 15  guarantees by the first  clause  a\t fundamental
\nright  of far-reaching importance to the  public  generally.
\nWithin\t certain  defined  limits  an  exception  has\tbeen
\nengrafted upon the guarantee of the freedom in cl. (1),\t but
\nbeing  in the nature of an exception, the  conditions  which
\njustify\t departure must be strictly shown to exist.  When  a
\ndispute is raised before a Court that a particular law which
\nis inconsistent with the Guarantee against discrimination is
\nvalid on the plea that it is permitted under cl. (4) of Art.
\n15,  the  assertion by the State that the  officers  of\t the
\nState  had taken into consideration the criteria  which\t had
\nbeen adopted by the Courts for determining who the  socially
\nand  educationally backward classes of the Society  are,  or
\nthat the authorities had acted in good faith in, determining
\nthe   socially\tand  educationally,  backward\tclasses\t  of
\ncitizens, would not be sufficient to sustain the validity of
\nthe claim.  The Courts of the country are invested with\t the
\npower  to determine the validity of the law which  infringes
\nthe  fundamental  rights of citizens and others and  when  a
\nquestion arises whether a law which prima facie infringes  a
\nguaranteed  fundamental\t right is within an  exception,\t the
\nvalidity  of that law has to be determined by the Courts  on
\nmaterials placed before them.  By merely asserting that\t the
\nlaw  was  made\tafter full  consideration  of  the  relevant
\nevidence and criteria which have a bearing thereon, and\t was
\nwithin\tthe  exception, the jurisdiction of the\t .Courts  to
\ndetermine whether by making the law a fundamental right\t has
\nbeen infringed is not excluded.\n<\/p>\n
The  High  Court has repeatedly observed in  the  course  of
\ntheir  judgment that no materials at all were placed on\t the
\nrecord\tto enable them to decide whether the  criteria\tlaid
\ndown by this Court for determining that the list prepared by
\nthe  Government conformed to the requirements of cl. (4)  of
\nArt. 15 were followed.\tOn behalf of the State it was merely
\nasserted  that an enquiry was in fact made with the  aid  of
\nexpert\tofficers and the Law Secretary and the question\t was
\nexamined from all points of view by the L7Sup.C.I\/68-14
\n604<\/span>
\nofficers  of the State, by the Cabinet Sub-Committee and  by
\nthe  Cabinet.- But whether in that examination\tthe  correct
\ncriteria  were\tapplied\t is  not  a  matter  on\t which\t any
\nassumption  could be made especially when the list  prepared
\nis   exfacie   based  on  castes  or  communities   and\t  in
\nsubstantially  the  list which was struck down by  the\tHigh
\nCourt  in P. Sukhadev’s case(1) Honesty of purpose of  those
\nwho  prepared  and  published the list was not\tand  is\t not
\nchallenged,  but  the  validity of a  law  which  apparently
\ninfringes  the\tfundamental  rights of\tcitizens  cannot  be
\nupheld merely because the law-maker was satisfied that\twhat
\nhe did was right or that he believes that he acted in manner
\nconsistent   with  the\tconstitutional\tguarantees  of\t the
\ncitizen.   The\ttest  of the validity of a  law\t alleged  to
\ninfringe  the  fundamental rights of a citizen or  any.\t act
\ndone in execution of that law lies not in the belief of\t the
\nmaker of the law or of the person executing the law, but  in
\nthe demonstration by evidence and argument before the Courts
\nthat the guaranteed right is not infringed.
\nThe appeal therefore fails and is dismissed.,
\nR.K.P.S.\t\t    Appeal dismissed.\n<\/p>\n
(1) [1966] 1 Andhra W.R. 294.\n<\/p>\n
605<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Andhra Pradesh & Anr vs P. Sagar on 27 March, 1968 Equivalent citations: 1968 AIR 1379, 1968 SCR (3) 565 Author: S C. Bench: Shah, J.C. PETITIONER: STATE OF ANDHRA PRADESH & ANR. Vs. RESPONDENT: P. SAGAR DATE OF JUDGMENT: 27\/03\/1968 BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-17524","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Andhra Pradesh & Anr vs P. 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