JUDGMENT Amitava Lala, J.
1. This writ petition is made by the petitioner virtually for the purpose of direction not to give effect of the letter dated 13th December, 2000, being Annexure-5 to the writ petition, and for quashing the departmental order dated 18th January, 2001, being Annexure-7 to the writ petition, and order in connection with election proceeding etc..
2. The writ petitioner was a candidate of the election notified for the local Gram Panchayat. The constituency was reserved for the people of backward class. The petitioner was a candidate under the scheduled category of "Banjara". The petitioner had filed his nomination after obtaining requisite certificate from the Tehsildar. But his nomination wascancelled. The plea of cancellation as taken by the authority is that the petitioner is Muslim by religion, therefore, his candidature as "Banjara" can not be accepted. "Banjara" belong to Hindu community only. Initially by virtue of Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 the "Banjara" was placed in Schedule-I of the Act. The said Act was amended with effect from 31st August, 2002 by incorporating "Banjara", "Ranki", "Mukeri" and "Mukerani" in the Schedule-l of the amended Act. The Act is known as Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2002. U.P. Panchayat Raj Act, 1947, as amended upto date, borrowed the meaning of 'backward class' from the aforesaid Act. The writ petition was filed on 13th February, 2001 prior to the amendment when item "Banjara" was only available under the schedule of the earlier Act.
3. It further appears that an order dated 29th September, 1999 passed by the Learned Single Judge in Civil Misc. Writ Petition No. 11107 of 1997 Sesh Mani Yadav v. 1st Additional District Judge, Gorakhpur and Ors. is also impugned herein. According to His Lordship, "Banjara" belonging to Hindu religion will only be considered as "Banjara" for the purpose of election of Gram Panchayat. From the order a special appeal, being Special Appeal No. (509) of 2002 Moazzam Ali v. 1st Additional District Judge, Gorakhpur and Ors. , was filed before this Court which was also assigned to this Bench for the purpose of analogous hearing and passing appropriate order. The letter impugned dated 13th December, 2000 is outcome of the aforesaid decision. We have gone through the judgment and found that the same is based on common knowledge. It was held that according to common knowledge of history "Banjara" is a caste amongst Hindusand no such caste or sect was known amongst Muslims. No fundamental right has been affected by the refusal by the authority. It was observed that as "Ahir", "Kurmi", "Gin", etc. can be said to be available amongst the Hindu religion and "Naqqal", "Faqir", "Momin" can be said to be available amongst the Muslim religion, Banjara community can be said to be Hindus on such logic.
4. Hence, not only the letter and Government Order under the writ petition but also the special appeal from the judgment of the learned Single Judge require to be considered.
5. Apparently the word 'Banjara' denotes to profession. But by virtue of such profession how their identity become restricted within one religion is unknown to this Court. Therefore, a thorough historical research is required to come to a conclusion to test the foundation. All the learned Counsel helped this Court a lot to come to a conclusion including Mr. U.N. Sharma, who was appointed as amicus curiae by the Court. We are thankful to them.
6. We get meaning of the word 'Banjara'from P. Ramanatha Aiyar's 'The Law Lexicon', 2nd Edition 1997, revised by Justice Y.V. Chandrachud. The meaning of 'Banjara'is that the name of the class of traders who travel over the country with numerous pack-bullocks carrying grain, salt, etc., from market to market. Some are Hindusand some are Musalmans.
7. From the People of India Vol. XLII, Part I, Uttar Pradesh by Mr. K.S. Singh, General Edition, we have got an idea about 'Banjara'. Etymologically the word Banjaraseems to be derived from banijya+kar, means 'a merchant', from 'ban-jarna' means 'burner' or 'cleaner of forest' or 'forest-wanderer', in which the last is most tenable. The community is fairly widespread. They are distributed in the north-west of central India and in the south as far as Hyderabad and down to Chitoor district in Andhara Pradesh. They were studied in one village in Etawah district of Uttar Pradesh. They have been included in the OBC list and also in the list of Denotified Communities for fifteen central and western districts of Uttar Pradesh. The dialect of the people is Mewari with outsiders. They freely converse in colloquial Hindi. Those who are literate can read and write Hindi. The script used is Devanagari.
8. Banjaras are non-vegetarian and take the meat of goat, chicken and fish. Earlier they were hunters, but nowadays they have given up the practice. Their staple diet consists of wheat chapati, dal and vegetables. Men are used to smoking bidi, and tea is a common beverage. Chewing tobacco is common for men and aged women.
9. The Banjaras have a number of endogamous division, each being sub-divided into a number of exogamous gotras. The Banjaras of Etawah reported as many as 16 exogamous divisions, viz., Baratiya Kurra, Dharmsaud, Bannoj, Muchar, Jaggot, June, Aamgaud, Dasawad, Lavania, Binjarabet, Kerut, Saudasaud, Margware, Bhukia, Dalware and Bhuluasa, and are proportionally larger in number. The Banjaraalso trace their ancestry to the Agnivanshi Rajputs but, because of the change of occupation and unsettled life, they were downgraded in the hierarchical ranking of the castes. The Banjara, who trace their origin to Rajasthan (Jodhpur), are called Lakha Banjara because their great ancestors had one lakh bullocks for carrying grain and other articles.
10. In settling marriages, the rule of caste endogamy and gotra exogamy is normally maintained. Marriages within one's own gotra, and mother's and father's mother's gotraare avoided. Group endogamy is adhered to and marriage alliances outside the community are dealt with seriously. If a man marries a girl of another caste, he is excommunicated and can be admitted after paying the penalty, but if a girl of the Banjara community dares to marry in this manner, she is never allowed to visit her people. This penalty is locally called chauka bahar kar dena. Marriages are settled through negotiation initiated by the girl's side. The usual age at marriage for a boy and girl now is 19 or 20 and 16 or 17, respectively. Earlier, child marriages between 6 to 7 years were fairly common. Dowry is given by the girl's parents to the boy's side, and the girl goes to live with her husband. She is required to put vermilion in her hair parting and wear bangles as a mark of marriage. Both remarriage and divorce are allowed. A widow remarriage is possible by levirate junior which is known as dharana. In this type of marriage the woman is given new clothes and bangles to wear and invariably the deceased husband's younger brother marries her and takes care of her children, if any. A second marriage in the lifetime of the first wife is possible if she fails to produce an issue. A widower is free to marry any one but sororal marriages are preferred if the wife's unmarried younger sister is available. Divorce is possible for both wife and husband on the grounds of adultery, cruelty and impotency. Normally, cases of mental disorder leading to separation are brought to the notice of the panchayat, which tries for a compromise. Failing to do so, the terms of compensation are decided. Divorce is not readily accepted and such cases are few.
11. The Banjarafamily is headed by the eldest male member. Joint or extended families are still common but nuclear families are also coming up. Family discord causes separation. By and large, the relation among the members of the family remain cordial. Property is distributed patrilineally, and in the absence of male issue, it is normally transferred to the nephew. In recent times, daughters are also given their share and, in such cases, the daughter's husband manages the father-in-law's property. In the absence of a male issue, adoption is allowed and the adopted child becomes the legal heir. The Banjarawoman does not enjoy the same socio-economic status as a man for she is neither entitled to a share in property nor does she enjoy economic independence. In the family, her achievements are valued with regard to her ability to discharge household work and look after the young children.
12. The life-cycle rituals connected with marriage, birth and death more or less conform to the Hindu rites. In marriage, the main ceremonies include phera and kanyadan. A priest is invited to officiate at the marriage rituals. The role of nai is very significant during marriage as he acts as a messenger and helps in certain rites. For instance, he gives a bath to the bridegroom prior to marriage and brings clothes and other symbolic objects required at the time of the marriage. He is paid appropriately for his petty services in the course of the ceremony.
13. The birth of a male child is always celebrated with gaiety. The mother and the child are given their first purificatory bath on the sixth day. Another ceremony known as dhatton is performed on the tenth day by giving a feast to the relatives and members of the biradari.
14. Certain taboos regarding food, etc., are observed for the period of two days of pollution following a death. The dead are cremated except those who die of small-pox and tuberculosis, who are buried and so are children up to twelve years of age. The eldest son is required to perform the death rites of the father. On the thirteenth day, terahvin ceremony is observed, which terminates the period of pollution and is followed by a feast to the biradari members. In the event of death of the husband, the widow is required to give up all the symbols of marriage, such as vermilion, bangles, toe rings, etc. She is also expected to lead a simple life.
15. The main economic activity of the people was to act as suppliers of grains from one place to another. Now they do small trading in clothes, cosmetics, scents, bangles and artificial jewellery as they find an easy clientele in the weekly village markets, fairs or melas. Besides, they trade in cattle and often attend the pashu melas (animal fairs). Many have acquired land and practise agriculture. The maximum Banjaraland-holding in the village under study was 15 bighas. Some have kept milch cattle and sell milk and milk products. By and large, the economic condition of the Banjarain this village was satisfactory. Most of them had procured loans under IRDP for buying cattle, installing tube wells for irrigation, etc.
16. As regards the traditional economic ties based on the jajmani system, there is not much scope left for it as most payments are in cash. Earlier, they had economic ties with certain artisan castes for obtaining ploughs but, with the introduction of the master plough, this service is no more required. The payment of wages is made both in cash and kind on mutually agreed terms. Those who do not have enough land may also work in others' fields as sharecroppers, where the owner is paid half the total produce. They also cultivate on a contract basis.
17. As the mechanism of social control, they have their own panchayat which effectively settles every serious breach of social norm like adultery, incest, rape, divorce, separation and maintenance, and even petty thefts. The offences of adultery, incest and rape are seriously punished, both in terms of cash fines and also physical humiliation. A man marrying outside the biradari is excommunicated but can be readmitted if he agrees to give a feast to the entire biradari.
18. As far as religion is concerned. Banjarasare either Muslim, Hindu or Sikh. Of these, Muslim and Sikh may enter into marital alliances. About conversion to the Sikh religion, they say that there was a regional leader by the name of Guru Charan Das who inspired them to embrace the Sikh religion. In our particular family, there can be both Sikhs and Hindus. They worship all the major gods and goddesses of the Hindu pantheon but mostly worship the regional diety, Karoli Wali Mata. All the major Hindu festivals are celebrated by them.
19. The community maintains its traditional social occupational linkages with castes like the Dhobi, Nai, and Dhanuk, who take a particular share from the crop for their services. For instance, a nai is given 1 kg. of grain every time he comes to shave, together with a fixed share in the crop twice a year, A midwife, who is invariably from the Dhanuk caste, comes to attend at the time of birth and she is also paid both in cash and kind. Besides, they maintain reciprocal relations with other castes of similar social rank. The Brahman, the Thakur, the Baniya, the Kawar, the Lodha are regarded as higher in the caste hierarchy and do not take food, whereas the Dhanuk, the Dhobi, the Chamar are reckoned inferior, but the castes lower to them can accept both kachcha and pucca food. The low castes like the Dhanuk and the Chamars are not allowed to draw water from their wells. The exchange of both pucca and kachcha food is, however, restricted within the biradari.
20. The impact of development programmes can be judged with regard to the standard of literacy/education, health and sanitation, civic facilities like water, electricity and, lastly, the economic viability and transport and communication. As regards literacy and education, they have better access to schools up to primary and higher secondary level available within the village. Both boys and girls go to school and attain at least a primary level of education. Some boys are studying for higher secondary and some have graduated. The village has electricity but their houses are not electrified. Drinking water is available through handpumps and wells. They also have tube wells for irrigation purposes. Medical facilities are not up to the mark but medicines are made available at the primary health centre. In case of serious illness, the patient is taken to the district hospital. The village is connected by road, and public transport is available. The people are getting loans under IRDP and have been significantly benefited. They also get seeds and manure from the block office. The overall economic condition of the Banjarais satisfactory and they are, by and large, satisfied with the amenities provided.
21. From the report of Most Backward Classes Commission, Uttar Pradesh, which was headed by Sri Chedi Lal Sathi being Chairman, submitted on 17th May, 1977, we can get an idea about Banjara. In the said report, in the historical background of the Banjarait has been defined as a lower caste of Hindus who in ancient time used to carry edible items to the army. The word 'Banjara' is derived from the Sanskrit word "Vanijya or Vanijya Kara", which means "Vyapari" (businessman). Lawana Banjarassay that they are ancestors of Gor Brahman and they had come from Rintambar the period of Aurangjeb.
22. In exercise of the powers conferred by Article 340 of the Constitution of the India, the President of India appointed a Backward Classes Commission to investigate the conditions of socially and educationally backward classes within the territory of India. Such Commission is commonly known as "Mandal Commission" since it was headed by Sri B.P. Mandal, Chairman of the Commission. A report was submitted by such Commission on 31th December, 1980. If we go through the voluminous report specially in the note on Socio-Educational Survey Tables and the Statewise List of the Depressed Backward Classes, we shall find that "Banjara", "Banjare", "Nal", "Naik", "Nayak", "Kangi", "Sirkiband", "Labana", "Dhankute", "Banjara", "Banjara Sikh". "Brijwasi" were categorised in the Item No. 13 of the list of O.B.Cs. and "Muslim Banjara in the Item No. 92 of such list of O.B.Cs.. In the other list of Depressed Backward Classes in Item No. 9 "Banjara", "Gor", "Ladenia", 'Gamalia", "Osaria", "Mathura", "Labana", "Labhana", "Dhanakuta Banjora", "Brajawasi Banjara", "Banjara nut Gwar", "Banjara Sikh" were notified, wherein "Muslim Bajara" were notified in Item No. 55.
23. We have carefully considered a very important book, namely, Tribes and Castes of N.W.P. & Oudh, Vol.-I, 1896 edition written by Crooke W. There we get elaborate discussion of different kinds of Banjaras. In that book we get that in the earlier days Banjaraswere falling into three grand Hindu Tribes, Mathuriya or "those from Mathura". Lavana, who probably derived their name from being carriers of salt (Sanskrit- Lavana), and Charan (Sanskrit- Charana, "a wonderer, pilgrim" : Chara, "a spy"). However, in those days, Guru Nanak, the Sikh prophet, usually figured as a opportune miracle- worker and spiritual advisor. From Mr. Cumberlege's memoir it may be conjectured, however, that emigration, which settled the Banjaraupon Dakkhin soil, took place when these grain carriers came down with the Mughal armies early in the 17th Century. As a corroboration of this, it may be noticed that the first mention of 'Banjaras in Muhammadans' history is in Sikandar's attack in Dholpur in 1504 A.D. . In fact they seem to have derived their whole origin and organisation from the long wars of Delhi Emperors in the South, and the restoration of peace and prosperity is breaking them up.
24. The best account of banjara tribes of the provinces of the Central India and North-Western provinces and Oudh, etc. is given by Sir H.M. Elliot. He divides them into five great tribes.
25. The first one is the Turkiya, "Turkish" or "Muhammadan". with thirty-six sub-tribes or Gotras. According to him, they came originally from Multan and left their newly-chosen country of Dakkhin under a leader called Rustam Khan, and first of all took up their abode at Badli Tanda near Moradabad, from where they have gradually spread to Bilaspur, Richho and neighbouring tracts. They are for the most part occupied as carriers.
26. The next one is 'Baid Banjaras', who came from Bhatner under a leader called Dualha. They have eleven gotras. Their occupations are more various than those of the Turkiyas, as they are occasionally employed as doctors and weavers. They are found in Pilibhit, Kant, and in the neighbourhood of those places.
27. Third category is 'Labana Banjaras' having eleven gotras. They state that they are descended from Gaur Brahmans and came in Aurangzeb's time from Rintambur. They engaged almost entirely in agricultural pursuits alone. They are almost wholly confined to the hill and submontane districts. They are the carriers and hawkers of the hills and the purely Punjabi representatives of that class of Banjaras, who inhabit the submontane tracts in the east of the Ganges. Labanas of Gujarat are peculiar people. Their status among Sikhs is much the same as that of the Mahtams. They correspond to the Banjaras of Hindustan carrying on an extensive trade by means of large herds of laden bullocks. The tribe of Banjaras take their name from their business of carrying salt (lavana) .
28. Another tribe is 'Mukeri Banjaras' in the northern parganas of Bareilly, who assert that they derive their name from Mecca (Makka) , which one of their Naiks, who had his camp (Tanda) in the vicinity, assisted Father Abraham in building. Leaving Mecca they came and resided in Jhajjar. where their illustrious name became corrupted from, Makkai to Mukeri. Their names also betray a strange compound of tribes Musalman and Hindu. Another story is that Mirzapur is their ancestors place. They hold Father Abraham to build Makka and that they emigrated into India with the armies of early Muhammadan invaders. Another name which they arrogate to themselves is Ahl-i-Quraish, or that of the Arabian tribe, from which Muhammad was descended. Their movements were from East to West and they have forgotten their real original, which was probably from the West, the Malwariyas being from Marwar and the Banaudhiyas from Banaudh, which included Southern Oudh and the district of Jaunpur, Azamgarh and Benares. They follow the Muhammadan religious and social rules, and, of course, allow widow marriage. They have, however, the Hindu rules of succession of property. They are professedly Muhammadans of the Sunni sect, but they retain many Hindu usages. They worship the Panchonpir in the manner common to all the inferior Muhammadan tribes of the Eastern districts, but they also make sacrifices to Kali Bhawani at the Nauratra of Chait. They follow the Muhammadan rules regarding food and drink spirits.
29. The next tribes are 'Bahrup Banjaras'. They are, for the most part, Hindus, and led a more wondering life than the Musalmans. They are divided into five tribes. The fifth is said to be derived from Gaur Brahman. Of these tribes again there are several ramifications.
30. In addition to the five more tribes described by Sir H.M. Elliot there is another which is usually classed as an offshoot of them as Naiks. There is a tribe of this name in the Panjab. They appear to follow the customs of orthodox Hindus.
31. The other Banjaras are Kheri Banjaras. who are Hindu and normally residing in North-Western provinces of Oudh. But a Kheri Banjara may marry as many as wife as he can afford to keep. Widow marriage and the levirate are both allowed under the usual conditions. In Kheri they are reported to prefer worship of Bhagwan and Parameswara and to be initiated in a temple in the Saharanpur district. They follow the social customs of Hindu Banjaras. Those in Bareilly and Pilibhit say that they were driven there by Ahmad Shah Durrani's invasion. They follow the orthodox rules of the Muhammadan faith, and work as cultivators, carriers of and dealers in grain. An interesting feature about 'Banjaras' will be available from the Census of 1891, as follows:
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DISTRICTS Chauhan Bahrup Gaur Jadon Panwar Rathaur Tunwar Others Muhamm Total adans
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33. As per "Encyclopaedia of Religion and Ethics", Vol.-II, Arthur-Bunyan, edited by James Hastings, the name 'Banjara' comes from Sanskrit Vanij, 'a merchant', Karaka, 'doing'. The tribes of wandering grain-carriers in India, which at the Census of 1901 numbered 765,861, most numerous in Hyderabad, but found in all the Indian provinces. As a result of their wandering habits, which have now much decreased since the carrying trade has fallen into the hands of railway authorities, they are a very mixed race. Their origin is probably Dravidian, but they now all trace their descent from the Brahman or Rajput tribes of Northern India. It is in the Deccan and in the State of Hyderabad that they still retain more of their primitive beliefs and customs than in the scattered colonies in the more northern parts of the country, where they have largely fallen under Hindu or Muhammadan influence. In the legends of the Deccan branch of the tribe, Guru Nanak, the founder of the Sikh faith, figures as a worker of miracles and as their spiritual advisor.
34. The Banjaras are a nomadic people, who 2300 years ago descended from Roma gypsies of Europe who migrated through the rugged mountains of Afghanistan and finally settled down in the deserts of Rajasthan in India. The colourful stream of the Banjaras began to travel down to the South in the 14th century. In the early 1800s, following the invasion of the armies of Aurangzeb, and thanks to the number of cattle they owned, the Banjaras worked for the Moghuls as commissariat carriers transporting provisions and arms, setting up camps on the outskirts of army encampments. When the Southern campaigns ended, the Banjaras forgot their desert homes in Rajasthan and settled down in the Deccan, the plateau of central peninsular India. In several States there are Banjaras Muslims, who were Hindu nomads and traders from Rajasthan. They claimed to have been forcibly converted to Islam by the ruler Aurangzeb. In Uttar Pradesh they are now cattle traders speaking Banjari and Hindi. Unlike Hindu Banjarasthese Muslims have their own food habit. There are 114.000 Muslim Banjaras in Uttar Pradesh and no more work among them.
35. From the exhaustive historical background, as above, one aspect is very clear that religion of Banjarascan not be restricted only amongst Hindus. They also belong to other religion including Muslims. The word 'Banjara' is a description of user, who are carrying such type of business. Therefore, only from the name one can not construe that they belong to only one religion. At least the above historical background does not say so. Historical background prevails over common knowledge by its source of information. Moreover law is to be read as it is. When the schedule under the Act gives description of "Banjara" without any specification of religion, there was no need to incorporate religion thereunder by interpretation. It is uncalled for. However, when there is no scope open for the Court to make a physical survey, the source of information would be supplied by the Historians. From the above historical background we find that at least in the State of Uttar Pradesh large number of Muslim Banjaras are available apart from Hindu Banjaras .
36. The petitioner filed his nomination on the reserved category of 'Banjara', which was available under the notification at the relevant point of time. There was no specification in the Schedule under the Act, being Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, whether 'Banjara'would be Hindu or Muslim by religion. Therefore, filing of nomination paper by the petitioner stating that he is falling under the backward class 'Banjara'was no way wrong statement, for which the nomination paper can be cancelled. The Act was amended in the year 2002 by incorporating "Banjara", "Ranki", "Mukeri" and "Mukerani" in one category. Therefore, we have to understand the intention of the legislature for making such amendment. Is it the intention to disregard the other religions or to give due regard to all the religions? If the amendment is read with the aforesaid historical background, it will be seen that the intention of the legislature was to give due regard to all the religions. In fact, the State was compelled to cancel the nomination paper on the basis of the order of learned Single Judge dated 29th September, 1999 against their will. Even in 1980 in the report of the Mandal Commission we find that description of Muslim Banjarais available in the list of Depressed Backward Classes. Therefore, when such report is accepted, the State is bound to accept nomination papers of all the religion under the heading Banjarain the schedule before its amendment. Had there been a case that identification of Muslim Banjarais separated to incorporate in other place of the schedule like Item No. 77 made for "Muslim Kayastha", then there would have been a logic of drawing such inference. Having not so, there was no need to draw such conclusion.
37. Our country is sovereign socialist secular democratic republic. Justice will be social, economical and political. Equality of status and of opportunity will be given. We can not forget the basic structure of the Constitution. Equality before the law or equal protection of the laws is the fundamental right of the people. There should be no discrimination on the grounds of religion, race, caste, sex, or place of birth excepting reasonable restrictions as provided under the Constitution. Equality of opportunity can not be restricted only in the matters of public employment but to others. Horizon has been expanded. Articles 14, 15 and 16 of the Constitution of India speak about equal opportunity with a rider 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, is not adequately represented in the services under the State. Article 243 onwards upto Article 243O, being Part IX of the Constitution of India, is an introduction of Seventy-third amendment in 1992 incorporating Panchayat. Reservation of the seats under Article 243D is predominant part of such Part IX. A similar rider is also given under sub-Article 6 thereunder. The U.P. Panchayat Raj Act, 1947 (successor of United Provinces Panchayat Raj Act, 1947), as amended upto date, gives definition of "backward classes" under Section 2(bb). It means the backward classes of citizens specified in Schedule I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. Such incorporation of the section was made in the year 1994 after amendment of the Constitution as aforesaid. Therefore, giving a different meaning of the unamended schedule was absolutely unnecessary.
38. In Indra Sawhney etc. etc. v. Union of India and Ors., etc. etc. we get lot of discussions in respect of "backward class". Although the Bench had ultimately held that reservation for backward class is needed per majority view, but all were uniform at least on one point that "backward class" means "class" not "caste" whatever may be the origin. Therefore, loose expression on the common knowledge and drawing an inference on an unseen part can build a dangerous situation unless, of course, it is stopped. The historical background, as given hereinabove, clearly indicates that Banjaras are not only Hindusby religion but also others. Therefore, drawing an inference that Banjarasunder the heading 'backward class" in the Schedule are Hindus, is absolutely wrongful inference.
39. In the aforesaid judgment lot of discussions were made by the Judges in favour or contra. But one aspect is very clear from the judgment that Article 16(4) of the Constitution never said that backward class should be read as backward caste. Per R.M. Sahai, J. , expression "backward class" is of wider import and there being no ambiguity or danger of unintended injustice in giving its natural meaning, it should be understood in its broader and normal sense. Backward class under Article 16(4) of the Constitution is not confined to erstwhile Sudras or depressed classes or intermediate backward classes amongst Hindusonly. Width of the expression includes in its fold any community i.e. Hindu, Muslim, Christian, Sikkh, Buddha or Jain, etc., as the expression is "backward class of citizens". Reason for backwardness or inadequate representation in services of backward Hindus prior to 1950 were caste division, lack of education, poverty, feudalistic frame of society, and occupational helplessness. All these barriers are disappearing Industrialisation has taken over. Education, through State effort and due to awareness of its importance, both, statistically and actually has improved. Feudalism died in fifties itself. Even the Mandal Commission accepts, this reality, as follows:
5.2 Caste restrictions have loosened considerably as a result of the rule of law introduced by the British, urbanisation, industrialisation, spread of mass education and, above all the attainment of independence and the introduction of adult franchise.
40. Any identification of backward class for purposes of reservation, therefore, has to be tested keeping in view these factors as the exercise of power is in presentii. Importance of word 'is' in Article 16(4) should not be lost of. Backwardness and inadequacy should exist on the date the reservation is made. Reservation for a group which was educationally, and socially backward before 1950 shall not be valid unless the group continues to be backward today. The group should not have suffered only but it should be found to be suffering with such disabilities. If a class or community ceases to be economically and socially backward or even if it is so it is adequately represented then no reservation can be made as it no more continues to be backward even though it may not be adequately represented in service or it may be backward but adequately represented.Per Kuldip Singh, J., "Class" under Article 16(4) cannot be read as 'caste'. Castes can not be adopted as collectivities for the purpose of identifying the "backward class" under Article 16(4). Occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of "backward classes". Caste-collectivity is unconstitutional and as such not permitted. Per Dr. T.K. Thommen, J. these classes of citizens, segregated in slums and ghettos and afflicted by grinding poverty, disease, ignorance, ill health and backwardness, and haunted by fear and anxiety, are the constitutionally intended beneficiaries of reservation, not because of their castes or occupations, which are merely incidental facts of history, but because of their backwardness and disabilities stemming from identified past or continuing inequities and discrimination. Per majority, identification of backward classes one has to begin somewhere- with some group, class or section. There is no set or recognised method. There is no law or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes/groupings, more particularly when Article 16(4) seeks to ameliorate social backwardness. There is nothing unconstitutional with it, more so when caste, occupation, poverty and social backwardness are so closely intertwined in our society. Therefore, if a commission/authority begins its process of identification with castes (among Hindus) and occupational gropings among others, it can not by that reason alone be said to be constitutionally or legally bad.
41. From the use of word "class" in Article 16(4), it can not be concluded either that "class" is antithetical to "caste" or that a caste can not be a class or that a caste as such can never be taken as a backward class of citizens. The word "class" in Article 16(4) is used in the sense of social class and not in the sense it is understood in Marxit jargon. They are very good reasons why the Constitution could not have used the expression "castes" or "caste" in Article 16(4) and why the word "class" was the natural choice in the context. The Constitution was meant for the entire country and for all time to come. Non-Hindu religions like Islam, Christianity and Sikh did not recognise caste as such though caste did exist even among these religions to a varying degree. Further, a Constitution is supposed to be a permanent document expected to last several centuries. It must surely have been envisaged that in future many classes may spring up answering the test of backwardness requiring the protection of Article 16(4) of the Constitution.
42. A caste is nothing but a social class- a socially 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. Reservation is not being made under Clause (4) of Article 16 in favour of a "caste" but a "backward class". Once a caste satisfies the criteria of backwardness, it becomes a backward class for the purposes of Article 16(4). Any factor-whether caste, race, religion, occupation, habitation, etc .-- which may have been responsible for the social and educational backwardness, would naturally also supply the basis for identifying such classes not because they belong to particular religion, race, caste, occupation, etc..
43. If we take an overall outlook in respect of historical background, Constitution, judicial interpretation, report of the Commission and understand the intention of legislature clearly, we shall get the answer that nomenclature under the item 'Banjara'in the schedule was never made to incorporate only one religion. For the sake of argument if we accept the logic of the learned Single Judge that the "Banjara" under the schedule is made only for one religion then where the 'Banjaras' of other religion will be placed. There is no nomenclature in the schedule. If not, can it be said they will be ousted even from the class? Our answer is "No". Any conclusion which will lead to an absurdity or create any dangerous situation, should not be encouraged. From the elaborate discussion, as aforesaid, one aspect is very clear that there is no religious restriction amongst the backward class. Therefore, item "Banjara", as was available under the schedule before its amendment in 2002, was definitely made for all but not for a particular religion. Law is to be read as it is written. No alien object is to be incorporated in the law by way of interpretation on the common knowledge.
44. Hence, the judgment and order dated 29th September, 1999 passed by the learned Single Judge in Civil Misc. Writ Petition No. 11107 of 1997 Shesh Mani Yadav v. 1st Addl. District Judge and Ors. , which is under challenge in Special Appeal No. (509) of 2002 Moazzam Ali v. 1st Additional District Judge, Gorakhpur and Ors. , stands set aside and the special appeal is allowed. Consequently, the Civil Misc. Writ Petition No. 11107 of 1997 Shesh Mani Yadav v. 1st Addl. District Judge and Ors. stands dismissed. The writ petition, being Civil Misc. Writ Petition No. 6152 of 2001 Moazzam Ali v. State of U.P. and Ors. stands allowed. The letter dated 13th December, 2000, being Annexure-5 to the writ petition, is directed not to give effect, and order dated 18th January, 2001, being Annexure-7 to the writ petition, stands quashed.
45. However, no order is passed as to costs.