# [1996] 1 S.C.R. 128

- **Citation:** [1996] 1 S.C.R. 128
- **Court:** Supreme Court of India
- **Decided:** 1996-01-04
- **Case number:** Civil Appeal No. 3163-64 of 1995
- **Bench:** K. Ramaswamy, B.L. I-Iansarja
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1996-1-s-c-r-128-13647
- **Pages:** 27

## Headnote

Constiturion of India, 1950 : Articles 15(4) and 16(4)
Reservation-Backward cll!ss-Syrian Catholic Lady o.f forward
class--/Vfarrying a Latin Catholic Backward class .fisher1nen-Her appointn1e11t against reserved post as lecturer--Held not valid-Held she was llOf
entitled to the bene.fit o_f reservation given to Latin Catholics o_f back\-vard
class-Her recognition as me1nber o_f Latin Ca1holics held not relevanl .for the
purposes o.f her entitle1nent to reservation.
Social lnteRration :
Inter-caste, /11ter-sect and Inter-religion marriages--/mportance o.f
The appellant, a syrian catholic by birth (a forward 'class) was
married to a person who was latin catholic (Backward class) fishermen).
She was a appointed as lecturer in the Law Department of Coch.in
University against a post reserved for latin catholics (backward class
fishermen). Her appointment was challenged on the ground that she was
not entitled to the benefit of reservation under Article 16(4) of the Constitution. A Single Judge of the High court held that the appellant's appointment was not valid. On appeal the appellant relied on the judgment of
F
Single Judge in Dr. Kanjamma Alex v. Public Service Commission, (1980)
KLT 18; which later stood upheld in Public Service Commission v. Dr.
Kaniamma Alex, (1981) KLT 24. Doubting the correctness of the decision
of the Division Bench, the matter was referred to the Full Bench. The Full
Bench in its Judgment held that being a syrian Catholic by birth the
G
appellant cannot claim the status of a backward class by marriage. The
Full Bench further held that the special provisious under Articles 15(4) and
16(4) of the Constitution intended for the advancement of socially and
educationally backward classes of citizens cannot be defeated by including
candidates by alliance or by any other mode of joining the community.
Accordingly, the Full Bench overruled the decision of the Division Bench
H
and of the Single Judge.
128
•
V. PAUL (MRS.) '· COCHIN UNIVERSITY & ORS.
129
In appeal to this Court it was contended for the appellant that : (i)
A
she married a backward class and had entered into the marital home of
her husband and was received and recognised by the community as a
member of Latin Catholic. Due to her marriage, she has subjected herself
and suffered all the environmental disabilities to which her husband was
subjected and to which all other members of backward class in the region
are subjected to. She cannot, therefore, be discriminated by denying
equality given by Article 16(4) of the Constitution; (ii) birth by itself was
not a determinative factor for claiming Protective disc.rimination given to
the backward classes. Environmental and social disabilities are also
relevant factors.
·on behalf of the respondents it was contended that (1) Articles 16(4)
and 15(4) are intended to remove handicaps and disadvantages suffered by
backward class citizens due to social and educational backwardness like
the members of Scheduled Caste and Scheduled Tribes. Therefore, persons
B
c
who by birth belong to Scheduled Castes, Scheduled Tribes or Backward
Classes alone were entitled to the benefit of Articles 16(4) and 15(4). By
D
marriage, adoption or any other device, viz., by procuring false social
status certificates, they were not eligible to avail of protective discrimina~
tion for appointment to an office or to a post under the State or admission
in educational institution; (ii) mere recognition of and acceptance by the
community after her marriage is not relevant for the purpose of availing
E
of the benefit of Articles 16(4) and 15(4).
Dismissing the appeals, this Court
HELD : 1. The Full Bench had rightly concluded that the appellant
is not entitled to the benefit of reservation under Article 16(4) as a lecturer
p
which post was reserved for the backward class Latin Catholic community.
The orders of the Division Bench and the Single Judge are set aside. The
Full Bench judgement stands confirmed. [154-C-D]
State of Kamataka v. Ap

## Text

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A
B
c
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E
MRS. VALSAMMAPAULETC.
COCHIN UNIVERSITY Af.:!D ORS. ETC.
()>
JANUARY 4, 1996
[K. RAMASWAMY AND B.L. I-IANSARJA, JJ.]
Constiturion of India, 1950 : Articles 15(4) and 16(4)
Reservation-Backward cll!ss-Syrian Catholic Lady o.f forward
class--/Vfarrying a Latin Catholic Backward class .fisher1nen-Her appointn1e11t against reserved post as lecturer--Held not valid-Held she was llOf
entitled to the bene.fit o_f reservation given to Latin Catholics o_f back\-vard
class-Her recognition as me1nber o_f Latin Ca1holics held not relevanl .for the
purposes o.f her entitle1nent to reservation.
Social lnteRration :
Inter-caste, /11ter-sect and Inter-religion marriages--/mportance o.f
The appellant, a syrian catholic by birth (a forward 'class) was
married to a person who was latin catholic (Backward class) fishermen).
She was a appointed as lecturer in the Law Department of Coch.in
University against a post reserved for latin catholics (backward class
fishermen). Her appointment was challenged on the ground that she was
not entitled to the benefit of reservation under Article 16(4) of the Constitution. A Single Judge of the High court held that the appellant's appointment was not valid. On appeal the appellant relied on the judgment of
F
Single Judge in Dr. Kanjamma Alex v. Public Service Commission, (1980)
KLT 18; which later stood upheld in Public Service Commission v. Dr.
Kaniamma Alex, (1981) KLT 24. Doubting the correctness of the decision
of the Division Bench, the matter was referred to the Full Bench. The Full
Bench in its Judgment held that being a syrian Catholic by birth the
G
appellant cannot claim the status of a backward class by marriage. The
Full Bench further held that the special provisious under Articles 15(4) and
16(4) of the Constitution intended for the advancement of socially and
educationally backward classes of citizens cannot be defeated by including
candidates by alliance or by any other mode of joining the community.
Accordingly, the Full Bench overruled the decision of the Division Bench
H
and of the Single Judge.
128
•
V. PAUL (MRS.) '· COCHIN UNIVERSITY & ORS.
129
In appeal to this Court it was contended for the appellant that : (i)
A
she married a backward class and had entered into the marital home of
her husband and was received and recognised by the community as a
member of Latin Catholic. Due to her marriage, she has subjected herself
and suffered all the environmental disabilities to which her husband was
subjected and to which all other members of backward class in the region
are subjected to. She cannot, therefore, be discriminated by denying
equality given by Article 16(4) of the Constitution; (ii) birth by itself was
not a determinative factor for claiming Protective disc.rimination given to
the backward classes. Environmental and social disabilities are also
relevant factors.
·on behalf of the respondents it was contended that (1) Articles 16(4)
and 15(4) are intended to remove handicaps and disadvantages suffered by
backward class citizens due to social and educational backwardness like
the members of Scheduled Caste and Scheduled Tribes. Therefore, persons
B
c
who by birth belong to Scheduled Castes, Scheduled Tribes or Backward
Classes alone were entitled to the benefit of Articles 16(4) and 15(4). By
D
marriage, adoption or any other device, viz., by procuring false social
status certificates, they were not eligible to avail of protective discrimina~
tion for appointment to an office or to a post under the State or admission
in educational institution; (ii) mere recognition of and acceptance by the
community after her marriage is not relevant for the purpose of availing
E
of the benefit of Articles 16(4) and 15(4).
Dismissing the appeals, this Court
HELD : 1. The Full Bench had rightly concluded that the appellant
is not entitled to the benefit of reservation under Article 16(4) as a lecturer
p
which post was reserved for the backward class Latin Catholic community.
The orders of the Division Bench and the Single Judge are set aside. The
Full Bench judgement stands confirmed. [154-C-D]
State of Kamataka v. Appa Bali lngale & Ors., AIR (1993) SC 1126;
C.M. Arumugam v. S. Rajagopal & Ors., [1976] 1 SCC 863; Soosai v. Union
G
of India, AIR (1986) SC 733; Prindpal, Guntar Medical College, Guntar v.
Y. Mohan Rao, [1976] 3 SCR 1046; N.E. Hero v. Jahan Ara Jai Pal Singh,
[1972] 3 SCR 361; Indra Sawlmey v. Union of India, [1992] Suppl. 3 SCC
217; Kai/ash Sonkar v. Smt. Maya Devi, AIR (1984) SC 600; Kumari
Madhuri Patil & Anr. v. Additional Commissioner, Tribal Development &
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130
SUPREME COURT REPORTS
[1996] 1 S.C.R.
A
Ors., [1994] 6 SCC 241 and Director of Tribal Wel{l1re, Government of
Andhra Pradesh v. Laveti Giri & Anr., JT (1995) 3 SC 684; referred to.
-..
Smt. D. Neelima v. The Dean of P.G. Studies, A.P.
Agricultural
University, Hyderabad & Ors., AIR (1993) A.P. 229; Unnila Ginda v. Union
of India, 1975 Delhi 115; Mrs. Vaishali v. Union of India, (1978) 80 BLR
B 182; P. Malikarjunadev & Ors. v. Govt. of Andhra Pradesh, (1989) 3 ALT
50; A. S. Sailaia v. Kumool Medical College, Kumool & Ors., AIR (1989)
AP 209; VB. Rao v. Priizcipal, Osmania Medical College, AIR (1986) AP
197; K. Shantha Kumar v. State of Mysore, (1971) 1 Mys. L.J. 21; Nataraja
v. Selection Committee, (1972) 1 Mys. L.J. 226 and R. Srinivasa v. ChairC
man, Selection Committee, AIR (1981) Karnataka 86, approved.
D
Dr. Kaniamma Alex v. Public Service Commission, (1980) KLT 18;
Public Service Commission v. Dr. Kanjamma Alex, (1981) KLT 24; Khazan
Singh v. Union of India, AIR (1980) Delhi 60, overruled.
Pandaiya Ta/aver v. Puli Telaver (1) Mad. 478, cited.
2. The recognition of the appellant by the member of Latin Catholic
is not relevant for the purpose of her entitlement to the reservation under
Article 16(4) for the reason that she, as a member of the forward caste, had
advantageous start in life and after her completing education and
E
becoming major married person of backward class; and so, she is not
entitled to the benefit of reservation given to the Latin Catholic, a
backward class. [153-H; 154-A]
3. The concepts of "equality before law" and "equal protection of the
law" guaranteed by Article 14 and its species Articles 15(4) and 16(4) aim
F
at establishing social and economic justice in political democracy to all
sections of the society, to eliminate inequalities in status and to provide
facilities and opportunities not only amongst individuals but also amongst
groups of people belonging to Scheduled Castes, Scheduled Tribes and
other Backward Classes of citizens to secure adequate means of livelihood
G
and to promote with spf!cial care the economic and educational interest of
the weaker sections of the people, in particular, Dalits and Tribes so as to
protect them from social injustices and all forms of exploitation. Articles
15( 4) and 16( 4), therefore, intend to remove social and economic inequality to make equal opportunities available in reality. Social and economic
justice is a right enshrined for the protection of society. The right to social
H
and economic justice envisaged in the preamble and elongated in the
V PAUL (MRS.) v. COCHIN UNIVERSITY & ORS.
131
Fundamental Rights and Directive Principles of the Constitution, in parA
ticular, Articles 14, 15, 16, 21, 38, 39 and 46 of the Constitution, is to make
the equality of the life of the poor, disadvantage and disabled citizens of
the society, meaningful. (136-F-H; 137-A; D·E]
4. The Dalits and Tribes suffered social and economic disabilities
recognised by Articles 17 and 15(2). Consequently they became socially, B
culturally and educationally backward; the OBCs also suffered social and
educational backwardness. The object of reservation is to remove these
handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected to and sought to bring
them in the mainstream of the nation's life by providing them opportuniC
ties and facilities. (151-E-G]
5. Education, employment and economic empowerment are some of
the programmes, the State has evolved and also provided reservation in
admission into educational institutions, or in case of other economic
benefits under Articles 15(4) and 46, or in appointment to an office or a
post under the State under Article 16(4). Therefore, when a member is
transplanted into the Dalits, Tribes and OBCs, he/she must of necessity also
undergo same handicaps, be subject to the same disabilities, disadvantages,
indignities or sufferings so as to entitle the candidate to avail the facility
or reservation. A candidate who had the advantageous start in life being
born in forward caste and had march of advantageous life but is transplanted in backward caste by adoption or marriage or conversion, does
not become eligible to the benefit of reservation either under Article 15(4)
or 16(4), as the case may be. Acquisition of the status of Scheduled Caste
etc. by voluntary mobility into these categories would play fraud on the
Constitution, and would frustrate the benign constitutional policy under
Articles 15(4) or 16(4) of the Constitution. (151-H; 152-A-C]
Murlidhar Dayandeo Kesekar v. Vishwanath Pandu, JT (1995) 3 SC
563 and R. Chandevarappa v. State of Kamataka, JT (1995) 7 SC 93,
referred to.
6. The institution of marriage is one of the sound social institutions to
bring harmony and integration in Social fabric. The Shastric law among
Hindus has undergone change, in the rigidity of shastric prescriptions. In
relation to interest succession of property, marriage, adoption and maintenance among Hindus, they are brought under statutory operation appropriately underpinning the rigid shastric prohibitions, restrictions to operD
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G
H
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132
SUPREME COURT REPORTS
[1996] 1 S.C.R.
ate in harmony with Universal Dedaration of Human Rights and constitutional rights. Inter-caste marriages and adoption are two important social
institutions through which secularism would find its fruitful and solid base
for an egalitarian social order under the Constitution. Therefore, due recognition should be accorded for social mobility and integration and accordingly its recognition must be upheld as valid law. [149-G-H; 150-A; F]
7. The approach in reconciling diverse practices, customs and traditions of the marriages as one of the means for social and national unity and
integrity and establishment of Indian culture for harmony, a;ruty and self
respect to the individuals, is the encou~agement to inter-caste, inter-sect,
inter-religion marriages from inter-region. The purposive interpretation
would, therefore, pave way to establish secularism and secular State.
Usha M. Apte, "The Sacrament of Marriage in Hindu Society From
Vedic period to Dharmasastras" 19"18 Ed. P. 13; G. Banerjee, "Hindu Law
of Marriage and Stridhana" 2nd Ed. 1896, p.68-69; Dr. Paras Diwan, "Law
D
of Marriage and Divorce", 2nd Edn. p. 75; Arnn Shouri, "Religion in
Politics" 1986 P. 332-333, referred to. [147-F]
.>-
8. The Constitution seeks to establish secular socialist democratic
republic in which every citizen has equality of status and of opportunity,
to promote among the people dignity of the individual, unity and integrity
E
of the nation transcending them from caste, sectional religious barriers
fostering fraternity among them in an integrated Bharat. The emphasis,
therefore, is on a citizen to improve excellence and equal status and
dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic
F
G
polity to all the citizens on equal footing, secularism has been held to be
one of the basic features of the Constitution, and egalitarian social order
is its foundation. Unless free mobility of the people is allowed transcending
sectional, caste~ religious or regional barriers, establishment of secU.lar
socialist order becomes difficult. [143-B-D]
S.R. Bommai v. Union ~(India, [1994] 3 SCC 1, referred to.
9. Pluralism is the keynote of Indian culture and religious tolerance
. is the bedrock of Indian secularism. It is based on the belief that all
religions are equally good and efficacious pathways to perfection or Godrealisation. It stands for a comple~ interpretive process in which there is
H a transcendence of religion and yet there is a unification of multiple
V PAUL (MRS.) '· COCHIN UNIVERSITY & ORS.
133
religions. It is a bridge between religions in a multi-religious society to
A
cross over the barriers of their diversity Secularism is the basic feature
of the Constitution as a guiding principle of State policy and action.
Secularism in the positive sense is the cornerstone of an egalitarian and
forward looking society which our Constitution endeavours to establish. It
is the only possible basis of a uniform and durable national identity in a B
multi-religious and socially disintegrated society . It is a fruitful means for
conflict-resolution and harmonious and peaceful living. It proVides a sense
of security to the followers of all religions and ensures full civil liberties,
constitutional rights and equal opportunities. [147-G-H; 148-A-B)
10. Human rights are derived from the dignity and worth inherent
C
in the human person. Human rights and fundamental freedoms have been
reiterated in the Universal Declaration of Human Rights. Democracy,
development and respect for human rights and fundamental freedoms are
inter-dependent and have mutual reinforcement. The human rights for
women, including girl child are, therefore, inalienable, integral and indiD
visible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in
political, social, economic and cultural life are concomitants for national
development, social and family stability and growth-culture, social and
economical. All forms of discrimination on grounds of gender is violative
E
of fundamental freedoms and human rights. [148-C-D]
11. In the light of the ConstitutionaVphilosophy of social integrity
and national unity, right to equality assured by the human rights and the
Constitution of India, on marriage by man and woman, they become
members of the family and entitled to the social status as married couple,
F
recognition per se is not a pre-condition but entitled to be considered, when
evidence is available. It is common knowledge that with education or
advance of economic status, young men and women marry against the
wishes of parents and in many a cas~ consent or recognition would
scarcely be given by either or both of the parties or parents of both
spouses. Recognition by family or community is not a pre-condition for
married status. [151-C-E)
G
Mussumat Bhoobun Moyee Debia v. Ramkishore Achari Chowdhary,
(1865) 10 MIA 279 and Lally Bhoy v. Cassibai, (1979-80) 7 IA 212,
referred to.
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134
SUPREME COURT REPORTS
[1996] l S.C.R.
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3163-64 of
1995 Etc.
From the Judgment and Order dated 18.1.95 of the Kerala High Court
in W.A. Nos. 416 & 187 of 1992.
B
K.M.K. Nair and R. Satish for the Appellants.
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S.A. Syed for State of Kerala, C. N. Sreekumar, G. Prakash and Navin
Prakash for the Cochin University for Intervenor.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. C.A. Nos. 3163-64195. These appeals by special
leave arise from the judgment dated January 18, 1995 of the Full Bench of
the Kerala High Court in writ appeal Nos. 416 and 187 of 1992. The Division
Bench, doubting the correctness of the judgment in Public Service Commission v. Di: Kanjamma Alex, (1981) KLT 24, (subject matter of CA No. 1197/
81) had referred the question to the Full Bench. Facts lie in a short compass
and are stated as under :
Two posts of Lecturers in Law Department of Cochin University were
notified for recruitment, one of which was reserved for Latin Catholics
(Backward Class-Fishermen). The appellant, a Syrian Catholic (a forward
class), having married a Latin Catholic, had applied for selection as a
reserved candidate. The University selected her on that basis and accordingly
appointed her against the reserved post. Her appointment was questioned by
one Rani George by filing a Writ Petition, viz., O.P. No. 9450/91 praying for
a direction to the University to appoint her in place of the appellant to the
said post. The learned single Judge allowed the writ petition of Rani George
and held that the appointment should be made strictly in accordance with
Rules 14 to 17 of the Kerala State Subordinate Service Rules. When appeals
were filed, the appellant cited the judgment a single Judge in Dr. Kaniamma
Alex v. Public Service Commission, (1980) KLT 18 which later stood upheld
in Public Service Commission v. Dr. Kan;ama Alex, ( 1980) KLT 24. As stated
earlier, doubting the correctness of the decision of the Division Bench in Dr.
Kanjamma Alex's case, the reference to the Full Bench had come to be made.
The Full Bench in the impugned judgment held that though the
appellant was married according to the Canon Law, the appellant, being a
H
Syrian Catholic by birth, by marriage with a Latin Catholic (Backward Class),
'-
'Jr
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V. PAUL (MRS.I" COCHIN UNIVERSITY & ORS. [K. RAMASWAMY, J.]
135
is not a member of that class nor can she claim the status as a backward class
A
by marriage. The special provisions under Articles 15(4) and 16(4) of the
Constitution intended for the advancement of socially and educationally
backward classes of citizens cannot be defeated by including candidates by
alliance or by any other mode of joining the community. It would tantamount
to making a mockery of the constitutional exercise of identification of
socially and educationally backward classes of citizens. Accordingly, the Full
Bench overruled the decision of the Division Bench and of the single Judge
referred to hereinbefore. The appeal challenging the Division Bench Judgement in respect of Dr. Kanjamma Alex, (Civil Appeal No. 1197/81) is placed
before us alongwith these appeals.
The question is one of constitutional importance to harmonize the
personal law of the citizens and the constitutional goal, viz., to accord equal
opportunity to the disadvantaged social segments, envisaged in Articles
16(4) and 15(4) of the Constitution. Shri T.L.V. Iyer, learned senior counsel
for the appellant, contended that though the appellant is a Syrian Catholic
(a forward class) by birth and had voluntarily married J. Yesudas, a Latin
Catholic (Fishermen community), admittedly a backward class, she had
entered into the marital home of her husband in the year 1982 and was
received and recognised by the community as a member of the Latin
Catholic. Due Io her marriage, she has subjected herself and suffered all the
environmental disabilities to which her husband, J. Yesudas, was subjected
and to which all other members of backward class in the region are subjected
to. She cannot,, therefore, be discriminated by denying equality given by
Article 16(4) of the Constitution. He elaborated the contention arguing that
birth by itself is not a determinative factor for claiming protective discrimination given to the backward classes. Environmental and social disabilities
are also relevant. factor to which the appellant had volunteered by subjecting
herself to them and that, therefore, she is entitled to the same treatment as
is available to the Latin Catholics (Fishermen) to which she was transplanted
by marriage according to Canon Law. Therefore, the view of the Full Bench
is not correct in law. He placed strong reliance on the Judgment of this Court
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in Principal, Guntur Medical College, Gwztur v.
Y. Mohan Rao, [l 976] 3 G
SCR 1046 and N.E. Hero v. Jahan Ara Jai Pal Singh, (1972] 3 SCR 361.
Shri Nambiar, learned senior counsel on behalf of the respondents,
contended that Articles 16(4) and 15(4) are intended to remove handicaps
and disadvantages suffered by backward class citizens due to social and
educational backwardness like
the members of Scheduled Castes and
H
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136
SUPREME COURT REPORTS
[1996] l S.C.R.
Scheduled Tribes. Therefore, persons who by birth belong to Scheduled
Castes, Scheduled Tribes or Backward Classes alone arc entitled to the
benefit of Articles 16(4) and 15(4). By marriage, adoption or any other
device, viz., by procuring false social status certificates, they are not eligible
to avail of protective discrimination for appointment to any office or to a post
under the State or adn1ission in educational institution. What is relevant is
inadequacy of representation of that class into an offi~e or service under the
Stale. The members belonging to that particular group which is not adequately represented alone are entitled to avail of the protective discrimination. The appellant, having had the advantage of starting life as Syrian
Catholic being born in forward, class, though she voluntarily married to a
backward class citizen, cannot claim the status as a backward class to avail
of protective discrimination unless she further pleads and establishes that
candidates like her suffered all the handicaps and disadvantages having been
born as backward class citizens or Scheduled Castes or scheduled Tribes.
Mere recognition of and acceptance by the community, after her marriage is
not relevant for the purpose of availing of the benefit of Articles 16(4) and
15(4). Acceptance may be only for recognition as a legally wedded wife of
a backward class citizen and nothing more. He distinguished the ratio of
Mohan Rao's case (supra) contending that the parents of Mohan Rao initially
belonged to the Scheduled Castes but later they converted into Christianity.
On reconversion Mohan Rao was accepted to be a member of the Scheduled
E
Castes and, therefore, his admission as a reserved candidates was upheld by
this Court. The ratio therein cannot be extended to all the situations and has
to be confined to special facts established in that case. As to Hero case, the
F
submission was that it is not relevant for our purpose.
The riv~l contentions give rise to the question of harmonising the
conflict belween the personal law and the constitutional animation behind
Articles 16(4) and 15(4) of the Constitution. The concepts of "equality before
Jaw" and "equal protection of the laws" guaranteed by Article 14 and its
species Articles 15(4) and 16(4) aim at establishing social and economic
justice in political democracy to all sections of the society, to eliminate
G
inequalities in status and to provide facilities and opportunities not only
amongst individuals but also amongst groups of people belonging to
Scheduled Castes (for short 'Dalits'J, Scheduled Tribes (for short 'Tribes') and
Other backward Classes of citizens (for short OBCs) to secure adequate means
of livelihood and to promote with special care the economic and educational
H interests of the weaker sections of the people, in particular, Dalits and Tribes
(
_i
V PAUL (MRS.),_ COCHIN UNIVERSITY & ORS. [K. RAMASWAMY,!.]
137
so as to protect the1n fro1n social injustice and all forms of exploitation. By
42nd Constitution (A1ncnd1nent) Act,. secularism and socialism were brought
in the Preamble of the Constitution to realise that in a democracy unless all
sections of the society are provided facilities and opportunities to participate
in political democracy irrespective of caste, religion, and sex, political
democracy would nol last long. Dr. Ambedkar in his closing speech on the
drati Constitution stated on November 25, 1949 that "what we must do is not
to be attained with 1nere political democracy; we must 1nake. our. political
den1ocracy a social democracy as well, Political de1nocracy cannot last unless
there lies on the base of it a social democracy". Social democracy means "a
A
B
way of life which recognises liberty, equality and fraternity as principles of
life". They are not separate items in a trinity but they form union of trinity.
C
To diversify one from the other is to defeat the very purpose of democracy.
Without equality, liberty would produce the supremacy of the few over the
many. Equality without liberty would kill individual initiative. Without
fraternity, liberty and equality could not become a nalural course of things.
Articles 15(4) 16(4), therefore, intend to remove social and economic
D
inequality to make equal opportunities available in reality. Social" and
economic justice is a right enshrined for the protection of society. The right
to social and economic justice envisaged in the Preamble and elongated in
the Fundamental Rights and Directive Principles of the Constitution, in
particular, Articles 14, 15, 16, 21, 38, 39 and 46 of the Constitution, is to
make the quality of the life of the poor, disadvantaged and disabled citizens
E
of the society, meaningful. Equal protection in Article 14 requires affirmaLive
action for those unequals by providing facilities and opportunities. While
Article 15(1) prohibits discrimination on grounds of religion, race, caste, sex,
place of birth, Article 15(4) enjoins upon th~ State, despite the above
injunction and the one provided in Article 29(2), to make special provision
F
for the advancement of any socially and educationally backward classes of
citizens or for the Dalits and Tribes. Equally, while Article 16(1) guarantees
equality of opportunity for all citizens in matters relating to employment or
appointment to any office under the State, Article 16(4) enjoins upon the
Stale to make provision for reservation for these section& which in the
opinion of the State are not adequately represented in the services under the
State. Article 335 of the Constitution mandates that claims of the members
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of the Dalits and Tribes shall be taken into consideration m making
appointments to services and p9sts in connection with affairs of the Union
or of a State consistent with the malntenance.of efficiency of administration.
Therefore, this Court interpreted that equal protection guaranteed by Articles H
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14, 15(1) and 16(1) is required to operate consistently with Articles 15(4),
16(4), 38, 39, 46 and 335 of the Constitution, vide per majority in Indra
Sawhney v. Union of India, [ 1992] Supp. 3 SCC 217 known as Manda/ case.
In other words, equal protection requires affinnative action for those unequals
handicapped due to historical facts of untouehability practiced for millennium
which is abolished by Article 17; for Tribes living away from our national
mainstream due to social and educational backwardness of OBCs.
In Kai/ash Sankar v. Smt. Maya Devi, AIR (1984) SC 600 a Bench of
three Judges of this Court, considering the historical perspective confronting
the framers of the Constitution in drafting fhe Constitution, stated that one
C of the important objectives to be translated into action was to take special
care of the backward classes and members of the Dalits and Tribes by
bringing them to the fore through pragmatic actions and providing adequate
opportunities for their amelioration and development, education, employment and the like. Hindu social structure was erected by impregnable walls
D of separation with graded inequalities between different sections amongst
Hindus. Caste became the result of birth and not of volition. No one wishes
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to be born in a particular caste or religion. It is the result of biological act
of the parents. However, in Hindu social structure also, caste is the result of
birth and has become a bane for individual drive, thrive and improvement
of excellence, a fundamental duty under Article 5 IA(j). The practice of
untouchability, which had grown for centuries, denuded social and economic
status and cultural life of the Dalits and
the programmes evolved under
Articles 14, 15(2), 15(4) and 16(4) aimed to bring Dalits into national
mainstream by providing equalitarian facilities and opportunities. They are
designated as "Scheduled Castes" by definition under Article 366(24) and
"Scheduled Tribes" under Article 366(25) read with Articles 341 and 342
respectively. The constitutional philosophy, policy and goal are to remove
handicaps, disabilities, suffering restrictions or disadvantages to which Dalits/
Tribes are subjected, to bring them into the national mainstream by providing
facilities and opportunities for fhem. As to OBCs, fheir identification was
delegated to a Commission appointed under article 340.
In Manda/ case, identifying fhe backward classes of citizens, per
majority, this Court at page 714 para 779 had held that a caste is nothing
but a social class - "a social homogeneous class. It is also an occupational
grouping, with this difference that its membership is hereditary. One is born
into it. Its membership is involuntary. Even if one ceases to follow that
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V. PAUL (MRS.)'· COCHIN UNIVERSITY & ORS. [K. RAMASWAMY, J.]
139
occupation, still he remains and continues to be a member of that group. To
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repeat, it is a socially and occupationally homogeneous class. Endoga1ny is
its main characteristic. Its social status and standing depends upon the
natures of the occupation followed by it; lowlier the occupation lowlier the
social standing of the class in the graded hierarchy. In rural India, occupationcastc nexus is true even today. A few members may have gone to cities or
even abroad but when they ~eturn, they do, -barring a few exceptions, go into
the same fold again. It does not matter if he bas earned money. 1;e may not
follow that particular occupation. Still, the label remains. His identity is not
changed. It is his social class, the caste, that is relevant."
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In para 784 at page 717, it was further held . that reservation under
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Article 16(4) is not made in favour of a 'caste' but a backward class. Once
a caste satisfies the criteria of backwardness, it becomes a backward class for
the purpose of Article 16(4). Even that is not eaough. It must further be found
that the backward class is not adequately represented in the services of the
State. It would, therefore, be for the authority constituted under Article 340
or the appropriate authority to identify the backward class eligible for
entitlement under Article 16(4). It would thus be seen that the D1lits, Tribes
and identified backward classes of citizens who are not adequately represented in a service or office under the State are eligible to be considered
under Article 16(1) read with Article 16 (4). Equally under Article 15(4) for
admission in educational institutions and in other programmes.
The question, therefore, is : Whether a candidate, by marriage, adoption
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or obtaining a false certificate of social status would be entitled to an
identification' as such member of the class for appointment to a post reserved
under Article 16(4) or for an admission in an educational institution under
Article 15( 4 )? In Kumari Madhuri Patil & Anr. v. Add/. Commissioner, Tribal
Development & Ors., [1994] SCC 241, the appellants were deughters of one
Laxman Patil who was a Hindu Koly (forward class). They obtained social
status certificates as Mahadeo !<.oli, Scheduled Tribe and were admitted into
Medical college. When it was found that they belonged to forward class, their
adntissions were cancelled and writ petitions were dismissed culminating in
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the aforesaid judgment. This Court had held that for the purpose of entitlement to aamission under Article 15( 4 ), the identification by the President as
a Scheduled Tribe under Article 342(1) subject to the law under Article
342(2) as amended by the Scheduled Caste and Scheduled Tribes (Amendment) Act 1976, is conclusive. In other words, this Court had not accorded
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to a member of forward class, by obtaining a false certificate the status of a
Scheduled Tribe. Admission given on the basis of false certificate was
declared unconstitutional.
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Director (If Tribunal Welfare, Government of Andhra Pradesh v. Laveti
Giri & Anr., JT ( 1995) 3 SC 684, is equally instructive. Therein, the father
of the respondent who was a Government servant obtained false certificate
that his son was a Scheduled Tribe and got the respondent admitted in
Engineering College. Father was a Kapu (a forward class in Andhra Pradesh)
and certificate obtained was as Konda Kapu, Scheduled Tribe. It was held that
the false claim by fraud played by the guardian disentitled the candidate to
the social status as a Schedule Tribe.
In Telangana Region of Andhra Pradesh, Holva Community is a
backward class. They sought to obtain social status as Holuva, a Scheduled
Tribe. The Collector issued memo to the Tahsildar not to issue certificate to
thent. When validity of the memo was questioned, A.P. High Court in Andhra
Holwa Society v. Union o,f/ndia and Ors., in Writ Petition No. 17011 of 1984
dated 28.2.1986 held that the class exodus of one class of citizens as tribes
on names of synonimity is impermissible. Similarly, Jangama community/
backward class sought certificates as Scheduled Castes (Bcda or Budaga
Jangarna). The same .High Court in P. Hallikarjunadev & Ors. v. Govt., o,f
Andhra Pradesh, [1989) 3 A.LT. 50, held that they are not entitled to social
status certificates. It would thus be dear that there are attempts of transplantation of forward classes to backward classes. Instead of integrated forward
march, it is a retrograde reverse march from forward to backward status to
claim reservations.
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In A.S. Sailaja v. Kurnool Medical College, Kurnool & Ors., AIR
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(1986) A.P. 209, the petitioner, daughter of A.S. Radhakrishna, an advocate
of Cuddapah in Andhra Pradesh, had initially appeared for Common Entrance
Examination for 1984-85 for admission into medical College but failed. For
the Common Entrance Examination for 1985-86 she described herself to be
daughter of natural father Radhakrishna but in the application for admission
made on July 13, 1985, she claimed that she was adopted by one B.
Sivararnaiah, (Shepard), a backward class in Andhra Pradesh and sought
admission on that basis. She secured 417 marks out of 600 and when she
claimed to be. O.B.C., but was not given admission, she filed a writ petition
in A.P. High Court for direction to the College to admit her as a backward
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class group-D. The High Court considered the inter-play of adoption under
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V PAUL (MRS.) v. COCHIN UNIVERSITY & ORS. [K. RAMASWAMY,!.] 141
the Hindu Adoption and maintenance Act, 1956 and the protective discrimiA
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nation under Article 15(4). It held that the native endowments of men are by
no means equal. The mind of children b~ought up in culturally, educationally
and economically advanced atmosphere, is accounted highly as they are
bound to start the race of life with advantages. It would apparently have its
inevitable profound effect on the quality of the child born in that atmosphere.
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The children born amongst backward classes would not start the race of life
with the same quality of life. It would, therefore, be necessary to identify the
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competing interests between diverse sections of the society and it is the duty
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of the Court to strike a balance bet ween competing claims of different
interests. Citizens belonging to a group of backward classes identified by the
appropriate authority or the commission, as a part of that class, fulfilling the c
traits of socially and educationally backwardness among that group, would
alone be eligible for admission as a backward class citizens under Article
15(4). In that event,. the Court declined to go into the question whether such
person is socially or educationally backward which is an exclusive function
of the commission/authority appointed under Article 340 of the Constitution.
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But any person who would attempt, by process of law and seeks to acquire
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the status of such a backward class should satisfy that he/she suffered the
same handicaps or disadvantages due to social, educational and cultural
backwardness. A person born in upper caste and having early advantages of
education is not entitled to the benefit of Article 15(4). In that context, it was
held that caste will be one of the considerations along with other factors
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applicable to homogeneous group of the people. A homogeneous group
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together be_ing identifying as a class for the purpose of Article 15(4) or 16(4)
would become mockery. Therefore, it was held that the petitioner, though by
adoption became a member of the backward class, was not eligible for
admission into medical college under Article 15(4) since she did not undergo
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any sufferings or disadvantages, handicaps or ignominy to which the membera of the homogeneous backward class are subjected to.
It was further held that in interpreting the provisions of the Hindu
Adoption and Maintenance Act 1956, and the Constitution, the balance is
to be struck to maintain secularism and mobility of castes for national
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iritegration ensuring inter-caste marriages or adoption from one caste to
another, allowing enough lee way for free mobility and integration of all
sections of the society as homogeneous group. At the same time, the Court
required to construe the provisions of the Act and the. Constitution t~
reconcile the right of the individual and the society's right, namely, social
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justice. In writ petition No. 11914/85 (spouse of inter-caste marriage) and
Writ Petition No. 14875/85 (adoption of a backward class boy 10 a Scheduled
Tribe) disposed of on the same day, it was held in separate judgment that they
were not eligible for admission under Article 15(4). In V.B. Rao v. Principal,
Osmania Medical College, AIR (1986) A.P. 197, a Velama (forward caste) was
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held not eligible for admission as Kappula Velama (O.B.C.). In K. Shantha
Kumar v. State of Mysore, (1971) 1 Mys. L. J. 21; Nataraja v. Selection
Committee, (1972) 1 Mys. L. J. 226 and R. Srinivasa v. Chairman Selection
Committee, AIR ( 1981) Kamataka 86, the Kamataka High Court consistently
had held that on adoption a boy, belonging to a forward caste by a backward
class citizen, is not entitled to the benefit of reservation under Article 15(4).
In Smt. D. Neelima v. The Dean of P.G. Studies, A.P. Agricultural
University, Hyderabad & Ors., AIR 1993 A.P. 229, the appellant, a Reddy by
birth (Reddy caste is a forward caste in A.P.) married to Erukala boy (basket
weaving community, Scheduled Tribe in A.P.) was living in her marital home
since her marriage. She sought admission into M. Sc. (Home Science) in
Agricultural University as a Scheduled Tribe. She filed writ petition for
direction for admission. The learned single Judge dismissed the writ petition
holding that by "anuloma" marriage she was not entitled to the same status
as that of the tribe. In another writ petition No. 1313 of 1992, the petitioner
lady born in a Vysya community (Business community) was married to a
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Bestha (fishermen community - a backward class - A category). She applied
for admission into Post-Graduate Medical Course (D.C.H.) under the quota
reserved for Backward Class - A Group. Her writ petition was allowed by a
learned single Judge holding that a marriage was not an agreement. It is a
sacrament. After marriage she was no more a member of her parents' family
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but became a member of her husband's family. Therefore, she was entitled to
be a member of the backward class. The diverse views were challenged before
the Division Bench which had held that though on marriage the girls become
members of their husbands' families snapping all their ties from parental
homes and acquire the status as a Scheduled Tribe or backward class, they
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are not entitled, by virtue of marriage, to the right to reservation envisaged
under Article 15(4) of the Constitution. Similar view was taken in Urmila
Ginda v. Union of India, AIR (1975) Delhi ll5 and Mrs. Vaishali v.