Note: On 17 March 2015, the Supreme Court scrapped the UPA government’s March 2014 notification to include Jats in the central list of the Other Backward Classes (OBCs). The bench of Justice Ranjan Gogoi and Justice Rohinton F. Nariman said, “Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out to the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.” In light of this judgment, Devanand Kumbhare’s article assumes more significance. Kumbhare has logically established the validity of caste as the basis of reservation. – Editors
Why did the Constitution of India make caste the basis for providing representation as Scheduled Castes, Scheduled Tribes and Other Backward Classes, when, in colonial India, religion, gender, place of birth and capital formed the basis for giving representation? The word “representation” was used throughout the constitutional history of India for what is today commonly called “reservation”. Obviously, “representation” is the original, constitutional term while “reservation” is its unconstitutional alternative. The alternative term hasn’t been used anywhere in the Constitution. But today we find that everyone –from students to intellectuals to print and electronic media to the common man – is using the word “reservation”. How and why the term “representation” was given a burial and the word “reservation” was coined can be the subject matter of research.
The world over, India is known as the “country of castes”.There are more than 6,000 castes in the country, with distinct identities and features.
In the colonial era, all Muslims, the Sikhs of Punjab, the non-Brahmins of Madras and Marathas of Bombay were given separate representation. Some positions were reserved for manual labourers, landlords, universities and corporations. But in the Constitution of independent India, reservation was given to Backward Classes on the basis of caste, subject to the fulfilment of two mandatory conditions – that in the eyes of the government and the Constitution they are socially and educationally backward.
Article 15(1) of the Constitution says, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Article 15, thus, guarantees equality to every citizen. Yet, reservations have been given only on the basis of caste.
Caste became a valid basis for granting reservation through the First Constitutional Amendment Act enacted by the Parliament in 1951. In fact, the very objective behind the amendment was to make caste a basis of reservations. Article 15(4), which is known as the “Reservation Article”, was introduced in the Constitution through this Act. It says, “Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” This Article, in a sense, violates Article 15, which guarantees equality to all citizens. Upholding the First Constitutional Amendment and making its objectives clear, Chief Justice of India K.N. Wanchoo ruled in “P. Rajendran versus State of Madras that “If the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the grounds that it is a socially and educationally backward class of citizens within the meaning of Article 15(4).” (SCR P. 790)
Thus, Justice Wanchoo makes it clear that in India, socially and educationally backward classes can be correctly identified through caste: “caste” is a “group of Indian citizens”. In other words, the grounds for the “backwardness of a caste” are its social and educational backwardness. Any caste that meets these two criteria is declared a “backward caste” by the central and state government. Clarifying the ground situation in India, Wanchoo said, “True, the caste system is predominantly known in Hindu society and runs through the entire fabric of the social structure. Therefore, the caste criterion cannot be divested from the other established and agreed criteria in identifying and ascertaining the backward classes.”
It is clear that Hindu religion cannot be imagined sans the caste system. Hinduism is a web of castes. In this web, social, educational, cultural and economic inequalities, anomalies and problems are galore. Most of the castes in this web were socially and educationally backward then and continue to be so today. During a debate in the Constituent Assembly on Article 14(4), describing caste as the “only measure” of backwardness in India, the father of the Constitution and country’s first law minister Dr B.R. Ambedkar has said, “Backward classes are nothing else but a collection of certain castes. The next important but central point at issue is whether caste, by the name of which a group of persons are identified, can be taken as a criterion in determining that caste as ‘socially and educationally backward class’ and if so, whether it will be the sole or dominant or one of the factors in the determination of ‘social and educational backwardness’.” Thus, Dr Ambedkar made it amply clear that the “castes” entitled to reservations were in fact, groups of socially and educationally backward people and that a collection of these groups were “Backward classes”. The backward classes may include SCs, STs, OBCs and other castes.
What does educational backwardness of these classes mean? It is very simple. They are either entirely deprived of education or their educational levels are very low. But what about social backwardness? In the Hindu social system, certain castes do not have any dignity. They are at the lowest rung of the caste hierarchy and not only are they deprived of dignity, but they also have to face humiliation. “Lower castes” are those that have traditionally been engaged in menial, dirty jobs like manual scavenging. Therefore, “lower caste” is a “state of disrespect” and hence socially backward. Due to the state of disrespect, these castes have been deprived of all opportunities of human development. The result is that some social groups of castes have been left miles behind in the race for progress. It is thus apparent how “caste” has become the basis of reservations via the criteria of social and educational backwardness.
Process of building consent
The central and state governments and the Supreme Court and high courts have taken different, sometimes contradictory, views on whether reservations should be given and on whether “caste” should be the basis of reservations. Most of the time, they were in favour of caste-based reservations, though, on occasions, they went against the concept, too. Taking cognizance of all the decisions of the governments and the courts in this regard, the Supreme Court, said, “Collating the above said views expressed by this Court in an arena of decisions as regards the relevance and significance of the caste criterion in the field of identification of ‘socially and educationally backward classes’ it may be stated that caste neither can be the sole criterion nor can it be equated with ‘class’ for the purpose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of ‘backward class’. Nevertheless, ‘caste’ in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens. Unless ‘caste’ satisfies the primary test of social backwardness as well as the educational and economic backwardness, which are the established accepted criteria to identify the ‘backward class’, a class per se without satisfying the agreed formulae generally cannot fall within the meaning of ‘backward class of citizens’ under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata indicating the social backwardness.”
This judgment of the Supreme Court put the final seal of approval on caste as a basis of reservations. Thus, it was after much debate between intellectuals, framing of different laws and rules by the governments and a range of decisions by courts that it was finally accepted that caste should be the basis of reservations in India. There is no challenging the formulation now.
Published in the April 2015 issue of the FORWARD Press magazine