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CHAPTER – V

CONSTITUTIONAL VALIDITY OF RESERVATION – JUDICIAL RESPONSE

The Indian Constitutional Perspectives of Reservation

When independence came to India, Ambedkar was appointed Law Minister

by Prime Minister Nehru, and subsequently Chairman of the Drafting Committee of

the Constituent Assembly, which had formed the government upon the granting of

independence on the 'appointed day', 15 August 1947. He was one of the principal

architects of the 1950 Constitution, and its provisions for a system of reservations

for what the Constitution termed the 'Scheduled Castes, Scheduled Tribes, and

Other Backward Classes’, which sought to redress the imbalances caused by

historical inequalities in the Hindu social system.

The Fundamental Rights section of the Indian Constitution upholds equality

before the law and equal protection of the law. Articles 14-16, taken together,

enshrine the principle of equality and non-discrimination1. While the principle is

generally stated in article 14, articles 15 and 16 involve particular aspects of

equality. Article 14 reads:

The State shall not deny to any person equality before the law or the

equal protection of the laws within the territory of India.

Article 15 prohibits discrimination against any citizen in any matter at the

disposal of the state on any of the specified grounds, namely religion, race, caste,

sex or place of birth - it applies with respect to access to shops, public restaurants,

or use of wells and roads.2 Article 16 is concerned only with employment under the

1 Basu. D. (2001), Introduction to Constitution of India (New Delhi. Pretice Hall of India.) 91 2 Article 15, Prohibition of Discrimination on grounds of religion, race, caste, sex, place of birth: (1) The state shall not discriminate against any citizen on the grounds only religion race, caste, sex, place of birth or any of them. (2) No Citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability liability, restrictions or condition with regard to – (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly 2 Basu. D. (2001), Introduction to Constitution of India (New Delhi. Pretice Hall of India.) 91 2 Article 15, Prohibition of Discrimination on grounds of religion, race, caste, sex, place of birth:(1) The state shall not discriminate against any citizen on the grounds only religion race, caste, sex, place of birth or any of them. (2) No Citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be

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state,1 paragraph 1 of which holds that there shall be equality of opportunity for all

matters relating to employment or appointment to any office under the state.2

Untouchability is expressly forbidden under article 17. It states:

“Untouchability is abolished and its practice in any form is forbidden. The

enforcement of any disability arising out of untouchability shall be an offence

punishable in accordance with the law”.3

In concordance with article 46 of the Directive Principles, the Indian

Constitution did not just guarantee formal equal treatment; to promote the

advancement of the untouchables, tribals and other socially and educationally

backward classes, it provided for special measures or affirmative action on their

behalf. The Constitution enshrines de jure equality: all persons are recognised on a

formal level as legally equal and are to be treated equally. This is juxtaposed with

an allowance for unequal treatment to achieve de facto equality. The Constitution

provides for special measures for those who are unequal, notably the Scheduled

Castes, the Scheduled Tribes, and Other Backward Classes.4

Article 330 specifically provides for reserved seats in the Lok Sabha, the

House of the People or lower house of parliament of the Union, for the Scheduled

Castes and Scheduled Tribes. Article 332 contains reservations for the Scheduled

Castes and Scheduled Tribes in the Legislative Assembly of every state. These

reservations are the only ones specifically enacted by the Constitution. Other

provisions contain authorisations empowering the state to make special provision

for the Scheduled Castes, Scheduled Tribes and Other Backward Classes. 5

subject to any disability liability, restrictions or condition with regard to – (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole out of State funds or dedicated to the use of general public. 1 Nothing in this article shall prevent the State from making any special provision for women and

children. 2 Nothing in this article or in clause (2) or 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. 3 Basu, D., supra n.1, 91. 4 Article 16, Equality of opportunity in matters of public employment: & clauses (1), (2), (3), (4),

(4A),(5). 4 Scheduled Castes - articles 15. 16, 46. : 335. 341. Scheduled Tribes - articles 15, 16, 335. 342. Other Backward Classes - articles 15, 16, and 46. 5 Galanter, M. (1984), Competing Equalities; Law and the Backward Classes in India (Berkeley. CA: University of California Press), 375. Galanter notes: 'Indeed, the general principle of

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The Constitution authorises special measures in the fields of government

employment as VI ell as legislative representation. Discrimination in government

employment is prohibited under article 16(1). In addition, article 16(4) allows the

state to make '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'. Articles 15(1) and (2)

forbid discrimination on the grounds of religion or caste, while article 15(4)

allows states to make 'special provision for the advancement of any socially and

educationally backward classes of citizens, or for the Scheduled Castes and

Scheduled Tribes'. Paragraph 4 was inserted into article 15 under the First

Constitutional Amendment Act following the 1951 Supreme Court decision in

Madras v. Champakam Dorairajan,1

The constitutional amendment also states that nothing in article 29(2)

shall prevent the state from making special provision for the Scheduled Castes.

This clause holds that no citizen shall be denied admission into any educational

institution on grounds only of religion, race. Caste or language. Therefore, article

15(4) allows the states to make reservations in educational institutions for the,

advancement of the Scheduled Castes, Scheduled Tribes and Other Backward

Classes.

This chapter will begin by analysing the article 17 ban on untouchability

and the article 46 Directive Principles of State Policy. These provisions are the

foundation for India's reservations policy, and underpin the Constitution's aim of

the elimination of caste-based discrimination. They represent a legal and moral

compass for the realisation of an egalitarian society Section 2 will examine the

categories to whom reservations apply. The meaning of Scheduled Castes,

Scheduled Tribes and Other Backward Classes will be explored, including the

boundaries between these groups. The issue of conversion is also examined:

whether converting from Hinduism results in a loss of entitlement to reservations

compensatory discrimination is established .IS a Directive Principle, but the specific provisions authorising it arc framed as exceptions to more general Fundamental Rights. This arrangement expresses the tension between the broad purposes to be achieved and the commitment to confine the device and make it comport with other constitutional commitments, notably that of formal equality.' 1 Madras V. Champakam Dorairajan, AIR 1951 SC 226.

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has become a crucial question, given that, if so, the reservations system could act as

a means of keeping Dalits within Hinduism, thus maintaining the existing caste

structure.

The Indian constitutional reservations system is divided into three main

categories, discussed respectively in the third, fourth and fifth sections. The first

category, described in the third section, comprises legislative reservations, in the

Lok Sabha, or lower house of Parliament of the Union, and Vidhan Sabha, or state

assemblies, under articles 330 and 332, as well as reservations in the decentralised

panchayats under article 243D. The fourth section looks at reservations in

educational institutions under article 15(4), while the fifth details reservations in

government employment under article 16(4).

These provisions represent the three prongs of affirmative action measures

in the Indian Constitution, which have their roots in the Poona Pact of 1932, as

described in Chapter I. The reservations are the result of the historical detente

reached between Gandhi and Ambedkar in Poona, whereby Gandhi agreed to end

his fast in exchange for the relinquishing of separate electorates for the

Untouchables. Ambedkar sought to ensure that the Untouchables' interests would

be safeguarded within a majority Hindu polity, and the Pact he negotiated, in

return for ceding his demand for separate electorates, outlines the three processes

by which this was to be achieved; reservations in the provincial and central

legislatures. In appointment to government posts, and in education.

The Poona Pact of 24 September 1932 reads:

1. There shall be seats reserved for the Depressed Classes out of general electorate

seats in the provincial legislatures ... 2. Election to these seats shall be by joint

electorates 4. In the Central legislature 18 percent of the seats allotted to the

general electorate for British India ill the said legislature shall be reserved for the

Depressed Classes

8. There shall be no disabilities attached to anyone on the ground of his being a

member of the Depressed Classes in regard to ... appointment to the public services.

Every endeavour shall be made to ensure a fair representation of the Depressed

Classes in these respects, subject 10 such educational qualifications as may be laid

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down for appointment to the Public Services. In every province out of the

educational grant an adequate slim shall be earmarked for providing educational

facilities to the members of the Depressed Classes.1

Of the three categories of special measures in the Poona Pact, educational

concessions would not find their way into the 1950 Constitution. As stated above,

provision for reservations in education would enter in the form of a constitutional

amendment one year after the enactment of the Constitution. The debates in the

Constituent Assembly reveal that Ambedkar expressly opposed constitutional

reservations in education - the debate forms part of the analysis of the fourth

section.

Article 17 and Article 46

Article 17, the Constitutional Ban on historical practices of Untouchability

For the furtherance of social equality,2 untouchability is expressly forbidden

under article 17 of the Fundamental Rights section of the Constitution. It states:

'Untouchability is abolished and its practice in any form is forbidden. The

enforcement of any disability arising out of untouchability shall be an offence

punishable in accordance with tile law.'

The Constituent Assembly debates of India 1947-49, reveal the impetus

behind the constitutional ban on untouchability. The Advisory Committee on

Fundamental Rights, of which Ambedkar was a member, was appointed by the

resolution of the Constituent Assembly of 24 January 1947. The Committee's

Interim Report on Fundamental Rights set forth the key justifiable provisions that

would form the body of the Fundamental Rights section of the Indian Constitution.

Untouchability was abolished in clause 6 of the Interim Report, adopted on 29 April

1947, which read: "'Untouchability" in any form is abolished and the imposition of

any disability on that account shall be an offence.3

1 8 Reproduced in Ambedkar, B. (1945), What Congress and Gandhi have done to the Untouchables (Bombay: Thacker and Co.). ch. 3: ‘A Mean Deal - Congress Refuses to Part with Power·. 9 Basu, D., supra n.l, 95. 2 Basu. D., supra n. 1, 95. 3 Constituent Assembly Debates (reprinted 1999), Official Reports (New Delhi: Lok Sabha Secretariat), vol. 3, Book 1, 29 April 1947,434.

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Untouchability was not defined in the Interim Report on Fundamental

Rights. In the discussion on clause 1, the definitions section of the Interim Report,

several members raised the question of enumerating a precise meaning of

untouchability. Srijut Rohini Kumar Chaudhury proposed an amendment to clause

1, the second part of which proposed defining untouchability: 'Sir, in the

fundamental rights, it has been laid down that untouchability in any form should

be an offence punishable by law. That being so it is necessary that the offence

should be properly defined. As it stands, the word untouchability is very vague.

Dhirendra Nath Datta supported the amendment: 'A magistrate or a judge dealing

with offences shall have to look to the definition ... untouchability means different

things in different areas ... I strongly feel that unless there is a definition, it cannot

be dealt with as an offence.’ 1

The President drew the Assembly's attention to clause 24, which stated:

'The Union legislature shall make laws to give effect to those

provisions of this part which require such legislation and to prescribe

punishment for those acts which are declared to be offences in this

part and are not already punishable', and the amendment was

withdrawn.2 Clause 24 would become article 35 of the 1950

Constitution, and in accordance with this provision, the

Untouchability Offences Act 1955 was passed. The Act was amended

in 1976, and renamed the Protection of Civil Liberties Act 1955.

Certain acts were declared as offences, such as refusing admission to

any person to public institutions, such as hospitals or schools,3 or

preventing any person from offering prayers in any place of public

worship.4 The 1976 amendment added offences such as insulting a

member of a Scheduled Caste on the ground of untouchability,

preaching untouchability, directly or indirectly, or justifying

untouchability on historical or philosophical grounds, or on the

1 Ibid., 414. 2 Ibid., 414. 3 Protection of Civil Liberties Act 1955, section 5(a). The abolition of untouchability is also envisaged by article 15(2) of the 1950.Constitution, which forbids the denial of access to shops, public restaurants, hotels and places of entertainment or the use of wells, tanks, bathing ghats. Roads and places of public resort maintained wholly or partially out of state funds or dedicated to the use of the general public. 4 Protection 0/' Civil Liberties Act 1955. section 3(b).

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ground of tradition of the caste system. 1 In the Asiad Project Workers

case,2 the Supreme Court found that the fundamental rights under

article 17 are available against private individuals and it is the

constitutional duty of the state to take necessary steps to see that

these fundamental rights are not violated.3

The legislation was strengthened further with the passage of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.4 The Act

theoretically creates courts for speedier trials and imposes harsher penalties for

these crimes, but has yet to be implemented in many states. According to Castellino,

few cases of these atrocities seek remedy before the courts, a vast majority

remaining unreported; rather there are instances where atrocities committed

against the community are celebrated by other sections of society.5 The author

quotes the findings of India's National Commission for Scheduled Castes and

Scheduled Tribes that 'even after fifty years of Independence, Untouchability has

not been abolished as provided in Article 17 of the Constitution and incidents

continue to be reported.6

The debates on draft article 11, which would become the article 17 ban on

untouchability, took place on 29 November 1948. They reveal concern amongst the

1 Protection of Civil Liberties Act 1955, section 7(c) (i) and (ii.) 2 Peoples Union for Democratic Rights V. Union of India, AIR 1982 SC 1473. 3 Pandey, J. (200 I). Constitutional La 11' of India (Allahabad: Central Law Agency). 149. 4 ‘An act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.’ 7 Castellino, 1. (2006), 'Minority Rights in India', in Castellino. 1. and Dorninguez- Redondo,E.(eds), Minority Rights in Asia: A Comparative Legal Analysis (Oxford: Oxford University Press). The author notes: 'The majority of the States have failed to set up Special Courts under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. As of 2 February 2003, exclusive Special Courts have been set up only in Andhra Pradesh (12), Bihar (11), Chhatisgarh (07), Gujarat (10), Karnataka (06). Madhya Pradesh (29). Rajasthan (17), Tamil Nadu (04), Utrar Pradesh (40) and Uttranchal (01). The remaining states and Union Territories have notified the existing Courts of Sessions as Special Courts for the trial of offences under the Act. As the courts in India are already over-burdened with 3.5 million and 40 thousand cases at the High Courts level in 2002, according to the report of the Parliamentary Standing Committee on Home Affairs, designation of the Court of Sessions as Special Courts helps little and further adds to judicial delay in India. See ACIIR features (A weekly service of the Asian Centre for Human Rights). "Spanners in the Draft National Policy on Tribals", ACHRF 22/2004. 11 August 2004.' 6 National Commission for Scheduled Castes and Scheduled Tribes. Fourth Report: 1996-1997 and 1997-1998 (New Delhi: New Government of India Press). 232: ibid.

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members of the Constituent Assembly that the practice of untouchability brought

shame upon India in the eyes of the international community. Shri V. I. Muniswamy

Pillai pointed out: 'the very clause about untouchability and its abolition goes a

long way to show to the world that the unfortunate communities that are called

"untouchables" will find solace when this Constitution comes into effect.' 1

Manomohon Das cited 'the sake of sustaining our goodwill and reputation

beyond the boundaries of India’ 2 as one of the reasons the Assembly must accept

the clause. Shrimati Dakshayani Velayudhan noted that: 'Even people in South

Africa were chastising us because we were having this practice here:3‘and observed

that the ban on untouchability would mean 'that our delegates abroad will not

have to hang their heads in shame if somebody raises such a question in an

organisation of an international nature.’ 4

This concern was accompanied by a desire to alleviate the suffering of the

Untouchables. Therefore, Shri Pillai spoke of 'the sting of untouchability', 'the

tyranny of the so-called caste Hindus', and how 'under the device of caste

distinction a certain section of people have been brought under the rope of

Untouchability’.5 Das said that 'this clause does not propose to give any special

privileges and safeguards to some minority community, but it proposes to save one-

sixth of the Indian population from perpetual subjugation and despair.’ 6 He

highlighted the role of Ambedkar, and stated: 'it is he who has finally dealt the

death blow to this custom or untouchability, of which he himself was a victim in his

younger days.’ 7 'Shrimati Yelayudhan added: ‘we cannot expect a Constitution

without a clause relating to untouchability because the Chairman of the Drafting

Committee himself belongs to the untouchable community.’8

With the words Mahatma Gandhi ki Jai (long live Mahatma Gandhi)

resounding in the Assembly, draft article 11, which would become article 17 in the

1 Constituent Assembly Debates. supra n.IO. vol. 7. BOOK 2. 20 November 194R. 665. 2 Ibid., 666. 3 Ibid., 667. 4 Ibid., 668. 5 Ibid., 665. 6 Ibid., 666. 7 Ibid. 8 Ibid., 667.

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final text, was added to the Constitution.1 Gandhi had been assassinated nine

months previously, and the cries were a tribute to what they believed was his

thirty-year effort to remove the practice or untouchability from Indian society

Zelliot, however, remarks:

the irony of the moment was lost on those present - a legalistic

measure was taken in the name of Gandhi who had no use for

legal means, coupled with the lack or recognition for

Ambedkar, the Untouchable who had drafted the measure and

who had bitterly fought Gandhi to secure legalistic solutions to

the problem of untouchability.2

The ban on untouchability was criticised at the early drafting stage for

being a superficial solution to the deeper problem of the caste system. The

Constituent Assembly debates show some support from members of the Advisory

Committee on Fundamental Rights for the abolition of the caste system as the only

means for effectively eradicating untouchability, On 29 April 1947, Promotha

Ranjan Thakur, commenting on the Advisory Committee's Interim Report on

Fundamental Rights, stated:

I do not understand how you can abolish untouchability

without abolishing the very caste system. Untouchability is

nothing but the symptom of the disease, namely, the caste

system. It exists as a matter of caste system. I do not understand

how this, in its present form, can be allowed to stand in the list

of fundamental rights. I think the House should consider the

point seriously. Unless we do away with the caste system

altogether there is no use tinkering with the problem of

untouchability superficially. I have nothing more to say. I hope

the House will consider my suggestion seriously.3

Dhirendra Nath Datta concurred:

1 Ibid., 669. 2 Zelliot. E. (2001),'Gandhi and Ambedkar: A Study in Leadership', in zelliot, E., From Untouchable to Dalit: Essays 011 the Ambedkar Movement (New Delhi: Manohar), 150. 3 Constituent Assembly Debates, supra 11.10, vol. 3, Book 1, 29 April 1947,403.

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I also feel with my friend Mr. Thakur that the root cause of

untouchability, namely, the caste system in Hindu society,

should be abolished altogether. Unless the caste system is

abolished, untouchability will persist in some form or other.1

The argument did not re-surface in the debates on draft article II that took

place on 29 November 1948. However, Saksena quotes a wide-ranging speech by

Shri Raj Bahadur made in the Assembly in the course of the discussion on draft

article 286, which would become article 320 in the final text, a clause that deals

with recruitment to public service commissions. Shri Bahadur attacked the

limitations of the system of constitutional reservations, echoing the dissenting

views expressed by Thakur and Datta in the Advisory Committee on Fundamental

Rights. He stated, inter alia:

It appears to me that clause 4 of article 286 is only a painful

reminder to us of the cancer from which our body-politic has

suffered for a long time - I mean to refer to the curse of the

caste system ... I would submit that we should rather go to the

root of the evil. The remedy for the evil does not lie in providing

a few jobs or posts in services or the states to persons living in

rural areas or persons living in urban areas. The remedy

perhaps lies elsewhere. We can. however, trace the causes of

these injustices or inequities to the evil of the caste system, that

has resulted in our degeneration morally and politically, the

evil that has resulted in creating so many watertight

compartments, the evil that has created other evils like

untouchability ... to ask for representation, however, on a class

or caste basis in the services is to remedy the disease only

superficially. But we have got to cure the disease from its very

roots.2

Article 46, the Directive Principles of Social Policy

1 Ibid. 414. 2 August 1949; quoted in Saksena, H. (1981), Safeguards for Scheduled Castes and Scheduled Tribes: Founding Fathers' Views, An Exploration of the Constituent Assembly.

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Article 46 of the Constitution, a Directive Principle of State Policy, requires that:

The State shall promote with special care the educational and

economic interest of the weaker sections of the people, and in

particular, of the Scheduled Castes and Scheduled Tribes. And

shall protect them from social injustice and all forms of

exploitation.

The Directive Principles were 'borrowed from the Constitution of Ireland 1

or Bunreacht na h Eireann (1937), which lists t he 'Directive Principles of Social

Policy' in its article 45 2 This provision was reproduced in article 38 of the 1950

Indian Constitution, with what O' Normain describes as 'the commendable

exception of the words "and charity", perhaps in deference to Oscar Wilde’s dictum

that "charity begetteth a number of sins", or merely because of the ambiguity of the

term’.3 O'Normain remarks of the Irish Constitution: 'Perhaps this Constitution's

greatest claim to future fame will depend on the extraordinary influence which its

Directive Principles had on the Constitution of India'.4

Article 45 of the Irish constitution stressed: 'the principles of social policy set

forth in this article are intended for the general guidance of the Oireachtas

parliament exclusively, and shall not be cognizable by any court under any of the

provisions of this Constitution.' The Indian Constitution followed this formula in its

article 37: 'The provisions contained in this part shall not be enforced by any court,

but the principles therein laid down are nevertheless fundamental in the

governance of the country and it shall be the duty of the state to apply these

principles in making laws.' On the decision to render the Directive Principles non-

justifiable, Howard points to the influence of the Irish model:

In the Constitution of India, fundamental rights and directive

principles appear as distinct entities, as the leaders of the

1 Pandey, J., supra .n.18, 343. 2 Article 45.1 of the Irish Constitution reads: “the state shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may social order in which justice and charity shall inform all the institution of national life” 3 O'Norrnain, C (1952), 'The Influence of Irish Political Thought on the Indian Constitution. Indian Yearbook of International Affairs 1, 160. 4 Ibid ., 157. He also mentions Burma.

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independence movement had treated the state's positive and

negative obligations as being in effect a common programme

for action. But the Indian National Congress, founded in 1885,

had a long-standing relation with the Irish, whom the

nationalists in India saw as having lived under comparable

colonial conditions. When India's Constituent Assembly, which

settled down to work in 1947, turned to the positive aspects of

the social revolution, a few members wanted to make the

directive principles justifiable. So strong was the Irish example,

however, that the Assembly set down the directive principles,

while being 'fundamental to the governance of the country', as

non-justifiable.1

Ambedkar explained the importance of the Directive Principles to the

Constituent Assembly: 'the directive principles have a great value; for they lay

down that our ideal is economic democracy.2 Yet their role has yet to be fully

ascertained, and there are divergent views as to their effectiveness. Ireland has had

a similar experience, with their non-justifiable status limiting their use.3 The

potential for the development of the Directive Principles marks a possible future

path, and authority for the enhancement of protections against caste based

discrimination may be attributed to article 46. This will depend on whether the

relevant institutions view the Directive Principles as 'a veritable dustbin of

sentiment,4 as described by Krishnamacahri: or, according to Markandan, the 'very

soul' of the Indian Constitution.5

1 Howard, A. (1996), 'The Indeterminacy or Constitutions', Wake Forest Law Review 31, 408-9 2 Quoted in Pandey, J., supra n.18. 344. Article 39(b) reads: 'That the ownership and control of the material resources or the community are so distributed ... as best to sub serve the common good', The corresponding provision of the Irish Constitution (article 45.2.2) uses 'may be' instead of the unequivocal 'are'. O'Normain writes that the word 'sub serves' has 'a delightful seventeenth century flavour about it. Indeed Milton's: 'Not Made to Rule, l3ut to subscrve where wisdom bears command' might. With advantage, replace the whole of Eire 45, or India 38'; O'Norrnain, C, supra n.37, 160-161. 3 See further Hogan, G. (2001), 'Directive Principles, Socioeconomic Rights and the Constitution', Irish Jurist 36, 174. 4 Quoted in Hardgrave, R. (1968), 'Directive Principles in the Indian Constitution' (Book Review), Journal of the American Oriental Society 88:3. 653. 5 Markandan, K. (1966), Directive Principles ill the Indian Constitution (Bombay: Allied Publishers), Introduction, vii.

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Who meet the criteria?

Scheduled Castes, Scheduled Tribes:

The system of reservations applies to three main categories of groups: the

Scheduled Castes, the Scheduled Tribes, and Other Backward Classes. Scheduled

Castes refers to that category of citizens previously known as 'Untouchables',

'Harijans', and now, 'Dalits'. Scheduled Tribes are known by their tribal culture and

geographic location. Other Backward Classes is a wide- ranging term denoting

those citizens who are low in the social hierarchy, but who do not belong to

Scheduled Caste. This group also includes tribal and nomadic groups, and converts

to non-Hindu religions from the Scheduled Castes, as well as the former Criminal

Tribes.45 It is estimated that the Scheduled Castes and Scheduled Tribes represent

around one quarter of the total population of India.1

These three categories are not defined in the Constitution. The President of

India is empowered to draw up a list of the Scheduled Castes and Scheduled Tribes

in consultation with the governor of each state, subject to revision by Parliament,

under articles 341 and 342. The Constitution provides for the appointment of a.

Commission to investigate the conditions of the backward classes under article 340.

The first such Commission was appointed in 1953, with three aims: to

determine the tests by which any particular class or group of people can be called

backward; to prepare a list of such backward communities for the whole of India;

and to examine the difficulties of backward classes and to recommend steps to be

taken for their amelioration.2 The tests propose 1 by the Commission in its 1955

Report were deemed to be too vague, and subsequently, the government resorted to

the lists prepared by the state governments to determine the members of the

Backward Classes. In 1980, a Second Backward Classes Commission was appointed

under the Chairmanship of B.P. Mandal (known as the 'Mandal Commission'), and

its report was published in December 1980. Because of this report, the government

reserved 27 per cent of posts in government service.

1 Basu, D., supra n.1. 396.n.7 2 Ibid., 394. 5.

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This was challenged as being unconstitutional in Indra Sawney v. Union of

India.1 The Supreme Court rejected the challenge; the case is discussed in Section 5

below, in the context of reservations of government posts. The Court did not

enumerate the backward classes in the case, but it did direct the government to set

up a Commission in the light of the principles laid out by the Court.2 The result was

the passing of the National Commission for Backward Classes Act 1993.3

In relation to the backward classes, the Supreme Court of India has been

careful to avoid basing its characterisation of such classes on the basis of caste

alone, thereby distinguishing 'Other Backward Classes' from 'Scheduled Castes'. In

Balaji V State of Mysore.4 in the context of article 15 reservations in educational

institutions, the challenge resulted from the Mysore Government's division of the

reserved seats in the Medical and Engineering Colleges into Backward Classes

(28% ), More Backward Classes (20 per cent), Scheduled Castes and Scheduled

Tribes (18 per cent). Thus 66 per cent of the seats in the College were reserved. The

Court found that the sub classification between Backward Classes and More

Backward Classes was not justified under article 15(4). Backwardness as envisaged

by article 15(4) must be both social and educational, and cannot be either social or

educational. Caste cannot therefore be the sole test of backwardness, although it

can be a relevant factor.5 Poverty, occupation, and place of habitation, for example,

arc also relevant factors. The Mysore Government's order applied only based on

caste. I t treated caste and class as synonymous, and this is not the case.6

That caste could not be the sole factor in determining what groups are

socially and educationally backward was raised in several other cases. The

Supreme Court ruled in A. Periakaruppan v. State of Tamil Nadu7 that the

classification of backward classes on the basis of castes is within the purview of

article 15(4) provided these castes are shown to be socially and educationally

backward. However, once a class is considered backward, it does not follow that it

1 AIR 1993 SC 477. 2 Basu, D., 133. 3 The Act came into force on I January 1993, and in August of that year, a five- member Commission0 was constituted with Justice R.N. Prasad as Chairman. 4 A lR 1963 se 649: Chitralekha V State of Mysore, AIR 1964 SC 1823. 5 Pandey, J., supra n. 18, 112. 6 Ibid., 133. 7 AIR 1971 SC 233.

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will always continue to be so. Such an approach, the Court held, would defeat the

purpose of the reservation system.1 It reiterated its position in State of A.P v. Us. V

Balaram’ 2 where it found that caste could not be the sole test for backwardness.

Nevertheless if an entire caste were found to be socially and educationally

backward its inclusion in a list of backward classes would not violate article 15(4).

Similarly, in K. S. Jayasree v. State of Kerala,3 the state's ruling that any

family earning over a certain amount could not qualify as backward, and therefore

were not eligible for reserved seats in medical colleges, was upheld by the Court

which stated that caste in itself is not the sole test of backwardness, just as poverty

in itself is not the sole test of backwardness. Both, however, are relevant factors.

In State of UP V. Pradeep Tandon’4, the reservation or seats for students at

Medical Colleges on the grounds that they came from Rural, Hill and Uttarakhand

Areas, was held to be unconstitutional. The Supreme Court objected to the category

'Rural Areas'; the citizens of the Hill and Uttarakhand Areas were socially and

educationally backward but the same could not be said of all citizens of rural areas.

The same distinction was overruled in Suneel Jatley v. State of Haryana5 whereby

the state's position that rural students were entitled to reservations, and urban

students were not, was deemed to be irrational and arbitrary.

Conversion

In Principal Guntur Medical College V. Y Roham Rao,’ 6 the Supreme Court

held that a Christian convert originally belonging to a Scheduled Caste could not be

eligible for a reserved place in the Medical College unless he reconverted and was

reaccepted into the caste.7 The issue was raised again in Soosai v Union of India,’8

where the Supreme Court determined that a person who converts to another

religion loses Scheduled Caste status. There are far-reaching consequences to this

question, given that in 1955 Ambedkar caused some three and a half million of his

followers to convert to Buddhism, thereby removing them from the caste system. A

1 Pandey, J., supra n.18, 133. 2 AIR 1972 SC 1875. 3 AIR 1976 SC 2381. 4 AIR 1975 SC 563. 5 (1984) 4 SCC 296. 6 (1976) 3 SCC 411. 7 Pandey, J., supra n. 18, 117. 8 AIR 1986 SC 733.

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rule against conversion could serve as an incentive to the Scheduled Castes not to

convert to another religion, or they will lose the opportunities provided by

reservations in elections, in education and in government posts. Reservations could

be perceived as perpetuating the caste system.

The UN Commission on Human Rights noted, in the context of the

implementation of the Declaration on the Elimination of All Forms of Intolerance

and of Discrimination Based on Religion 1981, that when a Dalit converts to a non-

Hindu religion, compensatory state measures are withdrawn. The UN Special

Rapporteur on Freedom of Religion or Belief highlighted, in his 1997 Report to the

Commission following a visit to India, 'an active lobby of converted Dalits ...

protesting against the withdrawal of State measures benefiting untouchables ...

when they convert to a non-Hindu religion; they consider that this practice

constitutes an obstacle to conversions.’ 1 The Report quotes the Secretary of the

Ministry of Law in Delhi, who 'pointed out that the conversion of a Hindu

untouchable to another religion gives rise to the loss, not of rights, but of the

privileges.2

Eisenman writes:

Compensatory measures are therefore conditioned, for many

Dalits; on their continued observance of a religion that has

historically stressed their inherent inferiority from caste-

Hindus ... The clear effect of such a withdrawal policy is to deter

Dalits from converting from Hinduism.3

Castellino points out that the 1950 Constitution makes a distinction as to

the meaning of 'Hindu' in its freedom of religion clause.4 Article 25(2) (b) provides

for 'social welfare and reform or the throwing open of Hindu religious institutions

1 Amor, A. (1997), Visit to India, Report submitted by Special Rapporteur on Freedom of Religion or Belief in accordance with Commission on Human Rights resolution 1996/23, UN Doc. E/CN.4/1997/911Add.l, paragraph 60. Nevertheless, the Special Rapporteur does not recommend the removal of this bar to conversion. The Report also describes 'the iniquitous system of castes, legally abolished but maintained in practice' (paragraph 24) 2 Ibid., para. 61. 3 65 Eisenman, W. (2003), 'Eliminating Discriminatory Traditions Against Dalits: The Need for International Capacity-Building of the Indian Criminal Justice System', Emery International Law Review 17, 150-51. 4 Castellino, J., supra n.20.

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of a public character to all classes and sections of Hindus'. The provision is

accompanied by an explanation:

In sub-Clause (b) of clause (2), the reference to Hindus shall be construed as

including a reference to persons professing the Sikh, lain or Buddhist religion, and

the reference to Hindu religious institutions shall be construed accordingly.’ 1

The 'active lobby' in the Special Rapporteur on Freedom of Religion or

Belief's report on India was concerned with 'untouchables converted to

Christianity,2 and not converts to Buddhism. In Soosai v Union of India, the Court

differentiated between conversion to Buddhism, Sikhism or Jainism and conversion

to Christianity or Islam.’3 Furthermore, an official government circular clarifies

Scheduled Caste/Scheduled Tribe status states: (iv) if the person claims to be a

Scheduled Caste, he should profess either the Hindu or the Sikh religion.’4 The

clause has a footnote, which states: 'Buddhism included by Constitution (Scheduled

Caste) Orders (Amendment) Act 1990.5 The provision for inclusion of Dalit Sikhs in

the list of the Scheduled Castes was passed in 1956. In May 1990, Prime Minister

VP. Singh brought Dalits who converted to Buddhism into the list of Scheduled

Castes. He made representations to Parliament that this change of religion, from

Hindu to Buddhist, had not altered their social, economic or educational conditions.

The Constitutional amendment holds: notwithstanding anything contained in

paragraph 2, no person who professes a religion different from the Hindu, the Sikh

or the Buddhist religion shall be deemed to be a member of a Scheduled Caste.’6

Therefore, Dalit converts to Buddhism, Jainism or Sikhism still qualify for

reservations; converts to Islam or Christianity or any other religion lose their

entitlement to reservations.

There is a strong logic to the distinction. Ambedkar opted for Buddhism

because of its egalitarian philosophy, but also because it did not represent a

complete break with Hinduism. The day before his conversion, he described his

1 Article 25(2)(b), Explanation II. 2 Report submitted by Abdelfattah Amor, Special Rapporteur, supra n.63. paragraph 60. 3 Castellino, J., supra n.20. 4 Quoted in Castellino, J., ibid. 5 Ibid. The 1990 Act is an amendment to the original Constitution (Scheduled Caste) Order 1950, which holds that 'no person who professes a religion different from the Hindu religion shall be deemed to be a Scheduled Caste' (paragraph 3). 6 Constitution (Scheduled Caste) Orders (Amendment) Act 1990

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action as ‘the least harmful way for the country’, which 'will not harm the tradition

of the culture and history of this land.’ 1 This is because, as Jaffrelot states,

'Ambedkar's Buddhism became integrated, almost in the form of a sect, into

Hinduism.’ 2 Similarly, although conversions were 'tacitly, if not explicitly,

disapproved by the leaders of Congress', many of them were 'relieved at the choice

of Buddhism rather than Islam or Christianity’ 3 The Hindu nationalist leader, V.

Savarkar, believed that the action did not involve a change of religion at all: 'One is

glad, however, that even while recoiling from the traditional Hindu social order, he

(Ambedkar) chose another essentially Indian way which, like Sikhism, Brahmoism

and the Arya Samaj, is only a variant of Hinduism.4

Jaffrelot remarks that this statement highlights the limitations of

Ambedkar's conversion to Buddhism.’ 5 The maintenance of reservations

entitlements for Ambedkarite Buddhists, and the exclusion of converts to

Christianity and Islam, is a legislative reflection of this.

Legislative Reservations

“Reservation in the Lok Sabha and Vidhan Sabhas”

Article 330 provides for the reservation of seats in the Lok Sabha, or lower

house of the Union, for the Scheduled Castes and Scheduled Tribes.6 The number of

seats reserved in any state or Union Territory for such Castes and Tribes is

determined according to the population.7 Article 332 provides for the reservation of

of seats in the Vidhan Sabhas, or Legislative Assemblies of every state, except the

tribal areas of Assam.8 Nagaland and Meghalaya. There are no reserved seats in

the upper houses of either state or Union assemblies.

1 Quoted in Jaffrelot, C. (2004), Dr Ambedkar and Untouchability: Analysing and Fighting Caste (Delhi: Permanent Black), 137. 2 Ibid., 3 Ibid., 136. 4 Quoted in Jaffrelot. C. ibid. 5 Ibid. 6 The reservations do not extended to the Backward Classes. 7 Pandey, J., supra n. 18, 616. 8 The 51st Constitutional Amendment provides that reservation of seats in the Assam Assembly for Scheduled Tribes will be made from the whole of the state except the autonomous District of Assam. There are reserved seats in the Assam Assembly for candidates from the autonomous District, as well as the Scheduled Castes and Scheduled Tribes. Ibid .. 616.

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The provisions do not grant separate electorates for the Scheduled Castes,

Scheduled Tribes and Other Backward Classes. The nominees must be members of

the specified groups; however the entire electorate may then choose a candidate.1

Article 325 acts as a barrier to the setting up of separate electorates by prohibiting

the exclusion of any person from the electoral roll on the grounds of religion, race

or caste.

The legislative reservation scheme is temporary. According to article 334,

article 332 reservations in state legislatures were to cease in January 2000, on the

expiration of 50 years from the commencement of the Constitution. Article 330

reservations were prescribed initially for a period of only ten years. This period was

extended to twenty years by the 8th Constitutional Amendment Act in 1959, and an

extension has been added by the amendment procedure every 10 years, the most

recent being the 79th Amendment Act 1999, which extended the period to 60 years,

due to expire in 2009.2

Scheduled AIR 1959 SC 1318. Caste and Scheduled Tribe candidates may also

contest any of the seats that are not constitutionally reserved.’3 But there have been

been relatively few successes.’4 The presence of members of the Scheduled Castes

and Scheduled Tribes in the legislatures is largely accounted for by the reservation

scheme.

The Delimitation Commission undertakes the selection of constituencies

fielding candidates for reserved seats. A key difference between the Scheduled

Castes and Scheduled Tribes is concentration of population. The Scheduled Tribes

are concentrated in certain geographic areas, whereas the Scheduled Castes are

dispersed throughout the country. This frequently provokes objections in relation

to the delimitation of constituencies for Scheduled Caste candidates. The

Delimitation Act 1972 governs the Commission. With respect to the Scheduled

Tribes, population concentration is the sole factor to be taken into account.5

1 Galanter. M., supra n.6, 45. 2 Basu. D., supra n. 1,394. 3 V.V. Giri vs. D.S. Dora AIR 1959 SC 1318. 4 Galanter, M., supra n. 6, 49. For example, in the first six Lok Sabhas, only a handful of candidates from Scheduled Caste or Scheduled Tribes filled unreserved seats. 5 Delimination Act, 1972, Section 9(1)(d).

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The Delimitation Act, in the case of the Scheduled Castes, instructs the

Commission to reserve seats 'in different parts of the state and ... in those areas

where the proportion of their population to the total is comparatively large.’ 1

The Commission, having established the areas with the highest

concentration of Scheduled Castes, usually not more than 20 per cent, and having

reserved seats in those areas, must follow the second criterion of dispersal of the

reserved seats in the state in question. This result in reserved seats for Scheduled

Caste candidates in areas with a relatively low proportion or Scheduled Caste

member is in relation to the total population. The bulk of these constituencies

contain only between 10 and 30 per cent Scheduled Caste voters.2

Hence, there are usually objections and opposition to the designation of a

constituency as reserved for Scheduled Caste candidates. These objections can be

voiced to the Commission, but they are rarely changed. Proposals for the rotation of

reserved constituencies have also been rejected.3 The courts cannot intervene in the

process under article 329 or the Constitution, once the Commission is following the

provisions of the Delimitation Act.4 In Mastanaiah v. Delimitation Commissioner’ 5

the Court rejected the claim that there was a duty on the Commission to relocate a

reserved constituency due to there being a higher percentage of Scheduled Caste

members in an adjoining area.

There is no reservation system in place for election to the upper houses of

parliament, at state or national level, which in both cases is indirect. Election to the

national Rajya Sabha is through proportional representation by the members of

the state legislatures, and election to the Vidhan Parishads, or upper houses of the

state legislatures, is through a combined election from the lower house, special

qualified constituencies and governmental nomination.’ 6 There is no reservation

with regard to political appointments, but there is a convention that at least one

1 Delimination Act, 1972, Section 9(1)(c). 2 Galanter, M., supra n. 6, 48. 3 Ibid., 49. 4 Article 329(a) of the Constitution: 'The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or 328; Shall not be called into question in any court.' 5 A.I.R. 1969 A.P. 1. 6 Galanter, M., supra n.6, 49. There is not an upper Legislative Assembly in every state.

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ministerial post be given to a candidate from the Scheduled Castes, at both national

and state level.

The reservation system is the primary reason for the presence of members of

the Scheduled Castes and Scheduled Tribes in the state and national legislatures. Its

removal would not necessarily imply that their numbers would be reduced to the

low levels that succeed in being elected to non-reserved seats. The geographical

concentration of the Scheduled Tribes would almost certainly ensure that they

would be represented, albeit at a significantly lower level than is the case under the

current reservation system. The same cannot be said of the Scheduled Castes, whose

dispersal would make it extremely difficult for potential candidates.’ 1 As to the

quality of representation, the absence of separate electorates means that the

candidates elected to the reserved seats are responsible to a constituency made up

overwhelmingly of non-members of their groups, especially with regard to the

Scheduled Castes.’ 2

One important aspect of the reserved seats in the legislatures is that they

are not self-liquidating, as is the Case with positions in educational establishments

and government posts. The reservations with regard to positions in educational

establishments and government posts act as a minimum guarantee. If candidates

from the Scheduled Castes and Scheduled Tribes fill these places on merit alone, the

number of positions reserved for them drops correspondingly. This is not the case

with the seats in the state and union legislatures, which are held by the Scheduled

Castes and Scheduled Tribes in addition to any gains made by these groups in the

general, non-reserved electorates. They can also be differentiated in that they are

subject to a constitutional time limit, which has been extended every decade. The

debates surrounding the periodic renewal of the reserved seats have revealed that

they are perceived as being the cornerstone of India's special measures policy?’ 3

The presence of Scheduled Castes and Scheduled Tribes in the legislatures has

helped promote related policies in education and government posts, as well as

ensuring the decennial continuation of the reserved seat policy.

1 Ibid., 50. 2 Ibid., 51 3 Ibid., 55.

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Reserved seats must be distinguished from the other aspects of India's

constitutional special measures provisions in that they do not form part of the

Fundamental Rights section. They appear in Part XVI, under the rubric 'Special

Provisions Relating to Certain Classes', and are beyond the remit of the courts

under article 329, who are barred from interfering in either their allocation, or the

delimitation process. In this area, the courts cannot assess the working or the

reserved seats policy. The impact of the courts in shaping India's reservation policy

is tempered, and if they act to confine the preference policy in employment and

education, the reserved seats in the legislatures can lend it more impetus.’ 1

Panchayats

A panchayat is a traditional Hindu village governing body, which reflects an

idealised belief in a decentralised system of governance by village rule. Granville

Austin describes the situation in India prior to independence as involving two

revolutions, the national and the social, which had been running parallel in India in

the period following World War I. 2 With independence, the national revolution

would be completed, but the social revolution, epitomised by such movements as

the fight against untouchability, would continue. The Constituent Assembly's task

was to draft a constitution that would underpin the conditions required to enact a

social revolution, without which, according to Nehru. 'All our paper constitutions

will become useless and purposeless.’ 3

An important issue for effecting this revolution was whether the political

institutions should be central and directly elected, or decentralised and indirectly

elected. The Constituent Assembly was required to choose between a parliamentary

Euro-American model, composed of an executive, a legislative and a judiciary, or an

Indian model of village rule through a system of panchayats. Both, it was

recognised, would be democratic. The strongest supporter of the village-based

system, perceived by its advocates as reflective of the true pre-colonial Indian life,

was Gandhi. He submitted two plans to the committee within the Indian National

Congress (INC) charged with revising the party's constitution. The second became

known as 'Gandhi's Testament', for it was presented on the day of his murder in

1 Ibid. 2Austin, G. (2002), The Indian Constitution: Cornerstone of a Nation (Oxford University Press), 26. 3 Quoted in Austin. G. Ibid., 27.

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January 1948. It called for the disbanding of the Congress, labelled a

'parliamentary machine', so that it could be turned into a social service

organisation based on a nationwide network of panchayats.’ 1

The new constitution of the INC established Primary Congress Panchayats in

villages as the basic organisational unit of the party.2 However, the committee

charged with its drafting maintained the central structure of the party, and

effectively rejected Gandhi's proposal, believing that the party could not abandon

its political role. Nevertheless, Gandhi's ideas continued to be promoted, and

proponents argued that his network of panchayats was not inconsistent with

organised government. Provided it was based on the villages. Shriman Narayan

Agarwal in his text Gandhian Constitution for Free India, proposed that the

primary political unit be the village panchayat, maintained by a hierarchy of

indirectly elected bodies. In addition, governed by the All-India Panchayat, whose

president would be the head of state.3 Agarwal sought to decentralise and keep

government to a minimum, thereby increasing individual responsibility and,

fundamentally, doing away with the need for political parties. India would be

returned to a primarily agricultural, rural society.4

The alternative available to the Constituent Assembly was a constitution

based on the Euro-American tradition, providing for a centralised directly- elected

government. The Assembly members had to decide whether a traditional or non-

traditional system would bring about the required social revolution. It took them

over two and a half years to produce a draft constitution, and their decision to

propose a parliamentary, federal constitutional regime for India meant that

Gandhi's ideal of village governance, while not completely rejected, would not form

the basis of the Indian polity. In the draft Constitution of November 1948.

panchayats featured only as a Directive Principle of State Policy. While most

members of the Assembly would have been in favour of a strong role for village

1 Ibid., 28. 2 Constitution of the Indian National Congress, 1948, I, quoted in Austin, G., ibid., 30. 3 Quoted in Austin, G., ibid., 30-31 4 Ibid.

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panchayats, they would not have supported a decentralised, indirectly- elected

regime.1

The Assembly members may have intended to omit all reference to

panchayats. The subsequent draft Constitution produced by mid-February of 1948

made no mention of them. A prominent critic of its omission was Rajendra Prasad,

President of the Constituent Assembly.2 He believed that the Constitution should

begin with the village and go lip to the Centre, His suggestion, whereby adult

franchise would be utilised only for the village panchayat and the panchayats

would then form an electoral college electing representatives to the provinces and

the Centre, was rejected. Other members had also submitted amendments to the

draft with regard to panchayats, which, while not calling for the indirect system of

government supported by Prasad, supported a degree of autonomy in the form of

local self-government. The amendments applied to the non-justiciable Directive

Principles, and they sought to place a duty on the state to encourage the

development of panchayats below the level of the provincial governments. This did

not represent support for an alternative Gandhian constitutional philosophy. The

demand was not political, but administrative.3 Politically, Indian cooperative

federalism would still operate from the provincial government level upwards. On

22 November 1948, K. Santhanam moved the party's official amendment, which

was adopted by the Assembly, and article 40 was written into the Constitution: 'The

State shall take steps to organize village panchayats and endow them with such

powers and authority as may be necessary to enable them to function as units of

self government.’

State governments after 1950 undertook the development of panchayats,

with the Union Government's Ministry of Community Development acting as

coordinator, but the network was not considered successful. In 1992, the 73rd

Constitutional Amendment Act’ 4 inserted two new parts into the Constitution

1 Ibid., 32. 2 Prasad was one of only two members of the Assembly who did not play the dual role of Assembly member and minister of the Union Government. All ministers had to be members of the Assembly, which also functioned as the legislature, however, as President; Prasad did not take part in the Legislative proceedings of the Assembly, Ibid. 15-16. 3 Ibid., 35-7. 4 The Rajiv Gandhi Government introduced the Panchayati Raj Bills in the Lok Sabha for the first time in 1989, but failed to get the support of the required majority in the Rajya Sabha. The states

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relating to panchayats and urban local bodies, Parts IX and IXA. They represent a

constitutional guarantee for panchayats in rural and urban areas, including

regular elections, devolution of financial and administrative powers, and

reservation of seats on the panchayats for Scheduled Castes, Scheduled Tribes and

women.1

Part IX or the Constitution outlines a three-tier system of panchayats, at

village level, district level, and an intermediate level. The members are chosen by

direct election from an electoral roll of those registered in the village in the area of

the panchayat. In this manner, it is envisaged that grass-roots democracy will be

introduced.

Article 243 provides that seats are to be reserved for the Scheduled Castes

and Scheduled Tribes. The reservation is in proportion to their population. Such

seats may be allotted by rotation to different constituencies in a panchayat. Of the

seats reserved for the Scheduled Castes and Scheduled Tribes, at least one third

must be reserved for women members of these groups. These reserved seats may

also be rotated. At least one third of the total number of seats in the panchayat is

reserved for women. A state may make provision for similar reservation for

Scheduled Castes, Scheduled Tribes and women for the offices of Chairpersons in

the panchayats at village and other levels. The reservation of the office of

Chairperson must also be in proportion to the population of Scheduled Castes and

Scheduled Tribes in the state. The legislature of a state is empowered to reserve the

office of Chairperson or seats in a panchayat to members of the Backward Classes.

The provisions are temporary. Article 334 limits the time period of their

application to sixty years from the adoption of the Constitution. They are due to

expire on 24 January 2010. Under article 243-0, the courts have no jurisdiction to

examine the validity of a law relating to the delimitation of constituencies or the

allotment of seats made under article 243-K. Only an election petition, governed by

objected to what they viewed as a direct encroachment on their autonomy in certain provisions of the Bills. They were referred to a Select Committee, and after modifications, were re-introduced in the Lok Sabha and passed on 23 December 1992. Pandey, J., supra 11.18, 528, 1 Ibid.

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the laws of the state legislature, can act as a challenge to an election to a position

on a panchayat.1

Panchayats reflect a Gandhian ideal of village rule which did not highlight

the function of the village in the oppressive mechanism of caste. When Ambedkar

formed the All India Depressed Classes Federation in 1942, two resolutions were

passed: the first condemned the Cripps proposals as a betrayal of the interests of

the Scheduled Castes, as discussed in Chapter 1; the second made a radical call for

constitutional provision for the transfer of Scheduled Castes to separate Scheduled

Caste villages. It read:

After long and mature deliberation [the conference came) to

the conclusion that a radical change must be made in the

village system, now prevalent in India and which is the parent

of all the ills from which the Scheduled Castes are suffering for

many centuries at the hands of the Hindus.2

In his introduction to the Draft Constitution in the Constituent Assembly on

4 November 1948, Ambedkar attacked those who wished to see India governed

through panchayats:

Another criticism against the Draft Constitution is that no part

of it represents the ancient polity of India. It is said that the new

Constitution should have been drafted on the ancient Hindu

model of a State and that instead of incorporating Western

theories the new Constitution should have been raised and built

upon village Panchayats and District Panchayats. They do not

want any Central or Provincial Governments. They just want

India to contain so many village Governments. The love of the

intellectual Indians for the village community is of course

infinite if not pathetic (laughter).3

1 Bosu, D., supra n.1, 1,276. 2 Report of the Depressed Classes Conference (G.T. Meshram, Nagpur, 1942). quoted in Zelliot, E., 'The Mahars of Maharashtra', supra n.31, 109. 3 Ambedkar, B., in The Essential Writings of B.R. Ambedkar, Valerian Rodrigues (ed.) (2002) (Oxford: Oxford University Press, 2002), 485; Introduction to the Draft Constitution of India, Constituent Assembly Debates, 4 November 1948.

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Ambedkar described the idealised village as follows: 'what is the village but

a sink or localism, a den or ignorance, narrow-mindedness and communalism? I am

glad that the Draft Constitution has discarded the village and adopted the

individual as its unit.1

In his text Outside the Fold, written following the discussion on village

panchayats in the Constituent Assembly in 1948, and published posthumously in

1989, Ambedkar recalled the angry speeches made in the Constituent Assembly in

support of the recognition of the Indian village as the base of the constitutional

pyramid. 'From the point of view of the Untouchables', he wrote, 'there could not

have been a greater calamity. Thank God the Constituent Assembly did not adopt

it.’2 He traced the belief that the Indian village is an ideal form of social

organisation to a civil servant of the East India Company, Charles Metcalfe, who

penned a depiction of the villages in romanticised terms.3

Ambedkar sought to present a realistic picture of society as one finds it in an

Indian village. He began: 'The Indian village is not a single social unit. It consists of

castes.4 He describes the population as being divided into two sections, touchables

and Untouchables, the former being the majority, the latter the minority who must

live in separate quarters. Socially, the Touchables occupy the position of a ruling

race, while the Untouchables occupy the position of a subject race. The terms of

associated life in an Indian village are based on a code of the touchables, which lays

down the acts of omissions, and commissions, which the Touchables treat as

offences. Ambedkar lists some fifteen as examples.5 Next, come the duties, which the

1 Ibid., 486. 2 Ibid., 323. 3 Metcalfe wrote: 'The village communities are little republics, having nearly everything they want within themselves ... This union of the village communities, each one forming a little state in itself, has, I conceive, contributed more than any other cause to the preservation of the people of India'; ibid., 324. 4 Ibid., 325. 5 Ibid., 325-6. They include: '3. The Un touch ablest must observe the rule of distance pollution or shadow of pollution ... 4. It is an offence for a member of the Untouchable community to acquire wealth, such a: land or cattle. 5. It is an offence for a member of the untouchable community to build d house with a tiled roof. 6. It is an offence for a member of the Untouchable community to put on a clean dress, wear shoes…..13 It is an offence for a member of the Untouchable community, if he happens to come into villages on a sacred day ... to go about speaking, on the ground that their breath is held to foul the air ... 15. An Untouchable must conform to the status of an inferior and he must wear the marks of his inferiority for the public to know and identify him as such.'

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Code requires members of the Untouchables to perform for the Touchables.1 Their

sources of living are precarious and fleeting, and the only security they are granted

is the right to beg for food. He concludes: 'The Untouchables must not insist on

rights. They should pray for mercy and favour their sources of living are precarious

and fleeting, and the only security they are granted is the right to beg for food. He

concludes: 'The Untouchables must not insist on rights. They should pray for mercy

and favour and rest content with what is offered ... The Untouchables have no

rights. They are there only to wait, serve and submit ... This is the Village Republic

of which the Hindus are so proud.2

Reservations in Education

The 1947 Interim Report on Fundamental Rights held in its clause 4:

(1) The State shall make no discrimination against any citizen

on grounds of religion, race. caste or sex, and (2): There shall be

no discrimination against any citizen on any ground of religion,

race, caste or sex in regard to - (a) access to trading

establishments including public restaurants and hotels (b) the

use of wells, tanks, roads and places of public resort maintained

wholly or in part out of public funds or dedicated to the use of

the general public: Provided that nothing contained in this

clause shall prevent separate provision being made for women

and children.3

Sardar Vallabhbhai Patel explained that the provision was 'a non-

discriminatory clause which is provided in almost all constitutions ... The first

clause is about State obligation; the second clause deals with many matters which

have nothing to do with the State such as public restaurants'.4 A number of

amendments were proposed, and almost all rejected, which sought to make small 1 Ibid., 326-7: 'To realize the Significance of these duties, it is important to note why they have come into being. Every Hindu in the village regards himself as a superior person above the Untouchables. As an overlord, he feels it absolutely essential to maintain his prestige. This prestige he cannot maintain unless he has at his command a retinue to dance attendance upon him.' 2 lbid .. 330 and 331: 'They have no rights because they are outside the villa ge republic and because they are outside the so-called republic, they are outside the Hindu fold.' 3 Constituent Assembly Debates, supra n.10, vol. 3, Book 1, 29 April 19"7. 426. 4 Ibid.

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changes to the detail of the provision. One member, P.S. Deshmukh, had a more

general objection:

In drafting such a long clause, we are throwing a shadow of

untouchability over the whole Constitution of India. In this

particular clause, I submit to the House, if we merely say that -

'the State shall not permit any discrimination against any

citizen on grounds only of religion, race, caste or sex', it should

be quite sufficient ... I think, therefore, that tile whole or tile

second part should be omitted.1

He did not enter his suggestion as a formal amendment, and it was not

voted upon. Clause 4, therefore, was seen as comprehensive in its protections, in

that 'it would cover cases of private institutions as well as State institutions’ 2.

When the provision came before the Assembly again on 29 November 1948 in the

form of draft article 9, Professor Shibban Lal Saksena, who wished that only the

first three lines of the clause remained and the rest were omitted, expressed

Deshmukh’s sentiment. 'By adding the sub-clause', he found, 'we are really

subtracting from the generality of the first clause. 3 He argued that the sub-clause

about the use of wells, tanks, roads etc. was not worthy of finding a place in the

constitution, for such disabilities were merely transitory and will vanish with time.

He stated: 'but if it becomes permanently incorporated in the constitution people in

other parts of the world will despise us for the existence of such discrimination in

the past.’ 4

In addition, the first three lines, he believed, should be maintained as a

Directive Principle of State Policy rather than a fundamental right.

Draft article 9 contained no sub-clause on making special provision for

Scheduled Castes and Scheduled Tribes. The clause as it stood held that nothing in

the article shall prevent the state from making any special provision for women

and children. Professor Shah moved an amendment, No.323, in the Assembly to this

effect: 'that at the end of clause (2) of article 9, the following be added: "or for

1 Ibid., 427. 2 Ibid. 432. 3 Ibid., vol. 7, Book 2, 29 November 1948, 659. 4 Ibid.

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Scheduled Castes or backward tribes, for their advantage, safeguard or

betterment".1

He explained his amendment as being in favour of particular classes, which,

owing to an unfortunate legacy of the past, suffer from disabilities, and may require

special treatment, especially in the field of education. 'In regard to the scheduled

castes and backward tribes, it is an open secret that they have been neglected in the

past ... They need and must be given, for some time to come at any rate, special

treatment in regard to education2. Such special treatment is required, he argued,

'if equality is not to be equality of name only or on paper only, but equality of fact’3.

Ambedkar addressed Professor's Shah's amendment, rejecting it on the

following basis:

With regard to the amendment moved by Professor Shah, the

object of which is to add 'Scheduled Castes' and 'Scheduled

Tribes' along with women and children, I am afraid it may just

have the opposite effect. The object all of us have in mind is that

the Scheduled Castes and Scheduled Tribes should not be

segregated from the general public. For instance, none of us,

think, would like that a separate school should be established

for the Scheduled Castes when there is a general school in the

village open to the children of the entire community, if these

words are added, it will probably give a handle for a State to

say, 'Well, we are making special provision for the Scheduled

Castes'. To my mind, they can safely say so by taking shelter under

the Article if it is amended in the manner the Professor wants it. I

therefore think that it is not a desirable amendment4.

Ambedkar's stance is difficult to comprehend, given that the lack of

education for Dalits had always been one of his primary concerns. In 1928 when he

appeared before the Simon Commission, he demanded educational concessions for

the untouchables as well as reserved seats in separate electorates. The demand also

1 Ibid., 655 2 Ibid. 3 Ibid., 656. 4 Ibid., 661.

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formed part of the Poona Pact, which he negotiated in 1932: '1n every province out

of the educational grant an adequate sum shall be earmarked for providing

educational facilities to the members of the Depressed Classes.1

His writing drew attention to the complete prohibition of the education of

the Shudras and the Untouchables, and the severe sanctions attached to violation

of that prohibition, as dictated by the dharma codes unique to India:

But India is the only country where the intellectual class,

namely the Brahmans, not only made education their monopoly

but declared acquisition of education by the lower classes a

crime punishable by cutting off of the tongue or by the pouring

of molten lead in the ear of the offender.2

Given the historical religious ban on education for Shudras and Dalits, there

was a compelling case for special measures in education to form part of the

constitutional reservations. Arnbedkar's resistance to Professor Shah's proposal is

not consistent with his earlier push for educational concessions for the Dalits, and

his belief in legislative measures to uplift his people. His concern, that such

measures would lead to separate schools for the Scheduled Castes, must have been

a very real one.

A distinction ought to be made between the different levels of education.

Thus, Professor Shah's amendment proposed adding SCs and STs after women and

children; who Ambedkar appears to interpret as suggesting that special provision

be made for SC and ST children in the realm of education. Arnbedkar's concern is

that this would lead to the exclusion of Dalit children from primary schools. This

danger is not apparent with regard to third level education. It is submitted that

reservations in third level institutes do not raise the dangers outlined by

Arnbedkar, and contribute towards the eradication of de facto discrimination in

providing more representation of Dalit students.3

1 The Poona Pact of 24 September 1932 reproduced in Ambedkar, B., supra n.8. 2 Ambedkar, 13., 'Class, Caste and Democracy', in Rodrigues, Y., supra n.l09, 146. 3 International human rights law on special measures also safeguards against such developments. Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination

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Professor Shah's amendment was not carried. Draft article 9 would become

article 15 of the Constitution, and made no reference to the educational uplift of the

Scheduled Castes and Tribes. In 1955, the First Constitutional Amendment would

insert a fourth paragraph into article 15, essentially incorporating Professor

Shah's amendment into the Constitution and allowing states to make special

provision for the advancement of any socially and educationally backward classes

of citizens, or for the Scheduled Castes and Tribes. This fourth paragraph would

read: '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.'

Paragraph 4 was inserted into article 15 under the First Constitutional

Amendment Act following the 1951 Supreme Court decision in Madras V.

Champakam Dorairajan1. The case challenged the Madras Government for

reserving seats in state Medical and Engineering Colleges for different communities

in certain proportions based on religion, race and caste. The state defended the

law, citing article 46 of the Directive Principles of State Policy, which requires the

promotion of social justice for all sections of the people. The Supreme Court ruled

against the state, holding that Directive Principles of State Policy cannot override

Fundamental Rights; the law classified students based on caste and religion

irrespective of merit, and was unconstitutional.

In response, the first Constitutional Amendment Act was passed, amending

both articles 15 and article 29(2). Article 29(2) states that 'No citizen shall be

denied admission into any educational institution maintained by the state or

receiving aid out of state funds on grounds only of religion, race, caste, language or

any of them'. Therefore, article 15(4) allows the state to make reservations in

educational institutions, or grant them free concessions, for the advancement of the

Scheduled Castes, Scheduled Tribes and Other Backward Classes.2 An originally

envisioned by Professor Shah in the Constituent Assembly in 1948. Furthermore, it

1965 may be cited in this regard: 'Special measures ... shall not be deemed racial discrimination provided. however, that such measures do not lead to the maintenance of separate rights for different racial groups'. 1 Madras v. Champakam Dorairajan, AIR 1951 SC 226. 2see Chitraleka v. State of Mysore, A. 1964 S.C. 1823, 1827.

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has been held that a Scheduled Caste or Scheduled Tribe candidate selected for

admission to a course based on merit as a general candidate should not be treated

as a reserved candidate.1

The provisions made in article 15(4) are enabling provisions and do not

impose any obligation on the state to take any special action.2 In Balaji v. State of

Mysore,3 the Supreme Court ruled that the Amendment merely conferred discretion

to act if necessary by way of making special provision for backward classes.

However, this discretion must be exercised in light of article 46 of the Constitution,

which directs the state to promote the educational and economic interests of the

weaker sections of the people.

Reservations in Public Employment

Article 16(4)

The 1947 Interim Report on Fundamental Rights held in its clause 5:

There shall be equality of opportunity for all citizens in matters

of public employment and in the exercise or carrying on of any

occupation, trade, business or profession. Nothing herein

contained shall prevent the State from making provision for

reservations in favour of classes who, in the opinion of the

State, are not adequately represented in the public services.

No citizen shall on grounds only of religion, race, caste, sex,

descent, place of birth or any of them be ineligible for public

office or be prohibited from acquiring, holding or disposing of

property or exercising or carrying on any occupation, trade,

business or profession within the Union.4

Clause 5 became draft article 10, which was debated in the Assembly on 30

November 1948. Draft article 10 added the adjective 'backward' to the noun 'class',

which had not appeared in the Interim Report, in its sub-clause 3:

1 132 P. G I. of Medical Education & Research v. K. L. Narasimhan (1997) 6 S.C.C. 283, paragraph 5. 2 133 Pandey. L, supra n.18. 112. 3 AIR 1963 SC 649: Cltitralekha V. State of Mysore. AIR 1964 SC 1823. 4 Constituent Assembly Debates, supra n.10, V01. 3, Book 1, 30 April 194 ',445.

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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.1

Shri Lokanath Misra found the sub-clause 'unnecessary because it puts a

premium on backwardness and inefficiency’2 There was much questioning of the

term amongst the members, who sought an answer as to the precise meaning of

'backward'. Shri Damodar Swarup Seth described reservations of posts or

appointments in services for the backward classes as the negation of efficiency and

good government. He warned: 'it is not easy to define precisely the term backward;

nor is it easy to find a suitable criterion for testing the backwardness of a

community or class.'3Pandit Hirday Nath Kunzru pointed out that 'the word

'backward' is not defined anywhere in the Constitution’.4 Finally, Aziz Ahmad Khan

proposed: 'That in clause 3 of article 10 the word 'backward' be omitted.'5

The proposal was designed to reinforce the protection of minorities, in

particular religious minorities, who were not considered 'backward'. If the article

was not amended, Khan argued, 'there will be doubts and misgivings among the

minorities that they are being ignored ... if the Sikhs, the Muslims, the Christians

and similar other groups living in the country have educational and other requisite

qualifications, then their claims should not be overlooked'.6

T.T. Krishnamachari thought that the word 'has fallen from heaven like

manna and snatched by the Drafting Committee in all their wisdom’7. He

continued:

May I ask who are the backward classes of citizens? It does not

apply to a Scheduled caste or any particular community ... Who

is going to give the ultimate award? Perhaps the Supreme

1 Ibid .. vol. 7. Book 2, 30 November 1948,672. 2 Ibid .. 673. 3 lbid .. 679. 4 Ibid. 5 Ibid .. 681. 6 Ibid., 682. 7 Ibid., 699.

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Court, It will have to find out what the intention of the framers

was as to who should come under the category of backward

classes. It does not say 'caste', It says 'class'. Is it a class, which

is based on grounds of economic status or on grounds of

literacy or on grounds of birth? What is it? 1

Ambedkar sought to answer the points raised in the Assembly on the

meaning of the new term. He began by looking at the rationale behind the use of

the word, and explained that the word 'backward' was designed to reconcile three

points of view:

The first is that there shall be equality of opportunity for all

citizens ... if this principle is to be operative ... there ought to be

no reservations of any sort for any class or community at all,

that all citizens, if they are qualified, should be placed on the

same footing of equality so far as the public services are

concerned. That is the second point of view we have. Then we

have quite a massive opinion which insists that, although

theoretically it is good to have the principle that there shall be

quality of opportunity, there must at the same time be a

provision for the entry of certain communities which have so

far been outside the administration.2

A feature of the reconciliation envisaged by Ambedkar was that:

if the reservation is to be consistent with sub-clause (1) of

article 10, [it] must be confined to a minority of seats. It is only

then that the first principle could find its place in the

Constitution and [be] effective in operation. If honourable

Members understand this position that we have to safeguard

two things, namely, the principle of equality of opportunity and

at the same time satisfy the demand of communities which have

not had so far representation in the State, then, I am sure they

1 Ibid. 2 Ibid., 701.

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will agree that unless you use some such qualifying phrase as

'backward' the exception made in favour of reservation will

ultimately eat up the rule altogether. Nothing of the rule will

remain. That I think, if I may say so, is the justification why the

Drafting Committee undertook on its own shoulders the

responsibility of introducing the word 'backward' which, I

admit, did not originally find a place in the fundamental right

in the way in which it was passed by this Assembly.1

With regard to the 'non-backward' minorities raised by Khan, Arnbedkar

highlighted draft article 296 where it was laid down that provision would be made

for such minorities. Finally, he addressed the definitional question:

Somebody asked me: 'What is a backward community?' Well, I

think anyone who reads the language of the draft itself will find

that we have left it to be determined by each local Government.

A backward community is a community which is backward in

the opinion of the Government. My honourable friend, Mr. T. T.

Krishnamachari asked me whether this rule will be justifiable.

It is rather difficult to give a dogmatic answer. Personally, I

think it would be a justifiable matter. If the local Government

included in this category of reservations such a large number of

seats; I think one could very well go to the Federal Court and the

Supreme Court and say that the reservation is of such a

magnitude that the rule regarding equality of opportunity has

been destroyed and the court will then come to the conclusion

whether the local Government or the state Government has

acted in a reasonable and prudent manner.2

Ambedkar's reasons for the inclusion of the adjective 'backward' emphasise

the need to define the reservations system within an egalitarian framework that

1 Ibid., 702. 2 Ibid.

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supports, first, equal treatment of equals, and second, unequal treatment of

unequal. His explanation is not entirely clear - he states that the aim of the

provision is the reconciliation of three points of view, but appears to enunciate just

two. The first is formal equality, where the Scheduled Castes, Scheduled Tribes and

Other Backward Classes would be placed on an equal footing with the majority,

and no discrimination against certain communities in the appointment of

government posts, on grounds of caste for example, would be allowed. He names

this form of constitutional protection 'equality of opportunity'; the equal treatment

of equals. But there must, along with formal equal treatment, be provision for the

entry of certain communities which have so far been outside the administration. In

this regard, the Scheduled Castes, Scheduled Tribes and Other Backward Classes

are in an unequal position, and must be treated unequally; hence the need for

reservations in government appointments. This is the second aim. The third aim is

that this unequal treatment, or reservation, cannot be of such an extent that it

would override formal equal treatment, and it is with this aim in mind that he

introduced the qualifying word 'backward', which, to paraphrase Ambedkar,

prevents the exception made in favour of reservation ultimately eating up the rule

altogether. This would, as Ambedkar predicted, be determined by the Supreme

Court to be 50 per cent. Over 50 per cent of a state's citizens could not be classed as

backward, for the phrase necessarily implies a numerical limit, whereby the eligible

classes must constitute a minority.1

Draft article 10 would form article 16 of the Constitution. Article 16(4)

enables the state to make provision for the reservation of posts in government in

favour of any backward class of citizens that, in the opinion of the state, is not

adequately represented in the services of the state. In the 1963 case of Balaji V.

State of Mysore,2 the Supreme Court stated that there:

1 See Castellino, J., supra n.20. The author treats Dalits as a minority group in India for the purposes of his analysis, even though the 1950 Indian Constitution expressly distinguishes between minorities, defined on a linguistic and religious basis, and the Scheduled Castes, Scheduled Tribes and Other Backward Classes. See also T M. A. Pai Foundation and Others v Stale of Karnataka and Others, SOL Case No. 599 (2002), paragraph 167; Khare J stated that 'the expression "minorities" has been used in Article 30 [of the Constitution) in two senses - one based on religion and the other on basis of language' (quoted in Castellino), 148 A. 1963 S.C. 647. 149 Ibid., 664. 2 A. 1963 S.C. 647.

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can be no doubt that the Constitution-makers assumed ... that

while making adequate reservation under article 16(4) care

would be taken not to provide for unreasonable, excessive or

extravagant reservation ... Therefore, like the special provision

improperly made under article 15(4), reservation made under

article 16(4) beyond the permissible and legitimate limits

would be liable to be challenged as a fraud of the Constitution.1

The Court held that the state could not include those castes whose average

student population per thousand was above or near to the state average. The

problem with the Mysore Government's order was that, under it, 66 per cent of the

population of the state was considered backward. The Court felt that the special

provision should be less than 50 per cent. How much less depended on the relevant

circumstances in each case. Sathe notes that reservations must be in proportion to

the totality of opportunities available to the people in general.

The Court therefore applied the proportionality test in deciding whether so

much reservation was desirable against the total perspective of the right to

equality.2 This question would find its denouement in the Mandal Commission case,

a decision that reflects the extraordinary complexity that the meaning of the

'backward classes' ultimately generated.

The Mandal Commission case; Indra Sawney v. Union of India

Reddy J of the Supreme Court described the Mandal Commission case in the

following terms: 'The questions arising herein are not only of great moment and

consequence; they are also extremely delicate and sensitive. They represent

complex problems of Indian society, wrapped and presenter to us as constitutional

and legal questions’ 3. On 13 August 1990, the Prime Minister of the Janta Dal

Government of India. Sri V.P. Singh, issued the Office Memoranda (called OM)

reserving 27 per cent of seats in government services for the backward classes

based on the recommendations of the Mandal Commission. The Commission had

been appointed under article 340 of the Constitution to investigate the conditions

1 Ibid., 664 2 Sathe, S. (2002), Judicial Activism ill India (Oxford: Oxford University Press), 132. 3 Jeevan Reddy J., Indra Sawney v. Union of India, AIR 1993 SC 477,518.

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of the Backward Classes.1 It sparked a violent anti-reservation movement, with

some members of the higher classes immolating themselves in protest against the

extension of reservations to the backward classes.2 The validity of the OM was

challenged in the Supreme Court before a five-Judge bench, which issued a stay on

its execution. In 1991, the Janta Government collapsed. In addition, the INC came to

power under Sri P.V. Narsimha Rao. Congress issued its own OM on 25 September

1991. There were two key changes to the original 1990 OM: first, it introduced an

economic criterion into the determination of backwardness by giving preference to

poorer sections in the 27 per cent quota;3 and secondly it reserved another 10 per

cent of vacancies for other socially and educationally backward Classes, meaning

the economically backward sections of higher castes. The case was referred by the

five-judge Supreme Court to a special nine-judge Constitutional Bench of the

Supreme Court in view of the importance of the matter, and in order to finally settle

the legal position of reservations in several earlier Supreme Court judgments which

had not spoken with one voice on the complex issues involved.4

The Supreme Court held that the reservations were constitutionally valid

provided that they did not include what it termed the 'creamy layer' of socially

advanced persons. The reservations were confined to initial appointments and did

not extend to promotions, and the total reservation must not exceed 50 per cent

(although the Court did envisage certain exceptional circumstances whereby the

limit might be exceeded). The 10 per cent reservation in favour of economically

backward sections of higher classes introduced by the INC was struck down.5

1 The Mandal Commission had submitted its report in 1980, which identified as many as 3.743 castes as socially and educationally backward classes. The Janta government collapsed in the meantime due to internal dissensions and the Congress Party headed by Indira Gandhi came to power. The Congress party did not begin to implement the Mandal Commission Report until 1989. and it was defeated by the Janta Dal in the same year, who promised to implement the Report as promised to the electorate. Accordingly Prime Minister Singh issued the OM which threw the nation into turmoil. Pandey, J., supra n.18, 13 . 2 See the concurring judgment of Justice Pandian in Indra Sawney: 'It is heart- rending that some youths … in the prime of their lives went to the extent of even self- immolating themselves ( ……..)’ 3 The Union Government ultimately failed to submit the economic criteria as mentioned in its 1991 OM despite of several adjournments of the Supreme Court. 4 Pandey, J., supra n.18, 132. The judgment delivered was by 6:3 majority, and held that the two impugned OMs were valid and enforceable but subject to the conditions as stated above. The minority struck down the two OM's as unconstitutional, and also OM’s Mandal Report to be unconstitutional. The majority did not express any opinion or adequacy of the Mandal Report. 5 Kuldip Singh J and Sahai J supported the provision in their dissenting judgments.

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The Court examined the scope of article 16(4), and sought to clarify its

previous interpretations. There are many elements to the decision, but the

fundamental points made by Ambedkar before the Constituent Assembly in relation

to the concept of the 'backward classes' are supported by the judgment. Its main

findings may be summarised in eight points as follows:

1) A caste can be and often is a social class, and if it is backward socially, it is a

backward class for the purposes of article 16 paragraph 4. There are also

socially backward classes amongst non-Hindus, Muslims, Christians and

Sikhs, and these classes are entitled to reservations. There is no set

procedure for the identification of backward classes, nor is it desirable for

the Court to identify one. It is for the appointed authority to identify such

classes. Identification can be done with reference to castes along with other

identification groups, classes, and sections of the people. Caste must be

considered along with other criteria as the test of backwardness. Caste

alone cannot be taken into consideration for the identification of backward

classes.1

2) Article 16(4) is not an exception to article 16(1) but an independent clause.

The decision of the Court in State of Kerala v. N.M. Thomas 2 was approved,

and the decision in Balaji, where the Court ruled that article 16(4) was an

exception to article 16(1),3 was overruled. Article 16(1) is a facet of the

doctrine of equality enshrined in article 14 and permits reasonable

classification just as article 14 does.4

3) The backward classes of citizens contemplated in article 16(4) are not the

same as the 'socially and educationally' backward classes referred to in

article 15(4). The former is a much wider category. The 'backward class of

1 Pandey, J., supra n.18, 132-3. 2 AIR 1976 SC 490: (1976) 2 SCC 310. The case involved the promotion of clerks from a lower to a higher division. In order to qualify for promotion, the clerks were required to pass a departmental test within two years, under Rule 133-A framed by the Kerala Government. The Rule allowed the government to exempt members of the Scheduled Castes and Scheduled Tribes from passing the test for two extra years. The exemption was challenged, but upheld by the Supreme Court, who found that it was reasonable in relation to the object of providing equal opportunities for all citizens. The Rule was upheld in accordance with the Court's interpretation that it was of a temporary nature- the Scheduled Castes and Scheduled Tribes would still have to pass the test, however, they were granted two more years in which to do so. 3 AIR 1963 SC 649, 651. 4 Pandey, J., supra n.18, 133.

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citizens' envisaged by article 16(4) includes Scheduled Castes, Scheduled

Tribes, and all other backward classes of citizens including the socially and

educationally backward classes. Certain classes may not qualify for

reservations under article 15(4) but may qualify under article 16(4). The

Court overruled its decision in Balaji on this point, for it had ruled in that

case that the Scheduled Castes, Scheduled Tribes and socially and

educationally backward classes of article 15(4) were the same as the

backward classes of article 16(4).1

4) In the process of identification of the backward classes, the 'creamy layer',

the socially advanced amongst these classes, must be excluded. The Court

directed that within four months of the decision, a Commission be set up by

the government charged with, inter alia, the identification of the relevant

socio-economic criteria that would result in the exclusion of socially

advanced persons, the 'creamy layer', The criteria should not be merely

economic, unless the economic advancement is or such a level that it

precludes social backwardness.2

5) The Court found that article 16(4) allows the sub-division of the backward

classes into more and less backward. It overruled the decision in Balaji

where it declared such sub-division unconstitutional. The Court stated that

such sub-division was necessary to prevent the advanced sections of the

backward classes taking all the benefits of the reservations.

6) The Court reiterated its position that the purpose of article 16(4) is not

economic uplift or alleviation of poverty. It is designed to give a share in

state power to those who have remained out of it on account or their social,

and therefore economic and educational, backwardness.3

1 Ibid. On this point, the Constituent Assembly debates can offer no assistance, since article 15(4) was introduced under the first Constitutional Amendment in 1955. 2 Ibid., 134. In accordance with the Supreme Court decision, the Union Government appointed an expert committee known as the Justice Ram Nandan Committee to identify the 'creamy layer' among the backward classes. The Committee reported on 16 March 1993. On 26 March 1993, the Bill setting up the National Commission for Backward Classes was passed. 3 Ibid.

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7) If a member of the Scheduled Castes or Scheduled Tribes is chosen based on

open competition, this will not result in a reduction or the reserved seats.1

8) The Court upheld its decision in the State of Kerala v. N M. Thomas 2 and

Devadason v. Union of India,3 cases, and overturned the ruling in Balaji, by

confirming that the maximum limit or reservation, besides certain

exceptional circumstances,4 is 50 per cent. In support of its ruling on this

matter, the Court relied on the speech made by Ambedkar to the Constituent

Assembly, in which he noted that 'reservation must be confined to a

minority of seats’.5

The findings of the Supreme Court in the Mandal Commission case on the

issue of the 50 per cent rule, as well as on promotions, have since been overturned

through two amendments to article 16(4) of the Constitution. In the 1964 case

Devadason v. Union of India,6 the Supreme Court had considered the scope of

article 16(4), particularly in relation to the 'carry-forward rule'. The rule provided

that if the quota of reserved posts for a given year was not filled, the balance would

be carried forward to the next. The rule was struck down in Devadason by the

Supreme Court, which deemed it unconstitutional, on the ground that the power

vested in government under article 16(4) could not be exercised to deny reasonable

equality of opportunity in matters of public employment for members of classes

other than backward.7 The Court stated that each year must be considered by itself,

itself, and reservation for the backward classes should not interfere unduly with the

legitimate claims of other communities. The reservation ought to be less than 50

per cent (the operation of the 'carry-forward rule' had resulted in 68 per cent of

positions being reserved).8

1 Ibid., 134-5. 2 AIR 1976 SC 490. 3 AIR 1964 SC 179. 4 These extraordinary situations would apply to those living in remote areas of the country, such as Nagaland and Tnpura. The Court urged extreme caution in such cases. And stressed the need for particular conditions requiring different treatment. 5 Quoted above. supra n.145. 6 AIR 1964 SC 179. 7 Pandcy, J., supra n.18, 129. 8 Indra Sawney v. Union of India, AIR 1993 SC 477. The decision in Devadason ignores the fact that the 'carry-forward rule' is self-liquidating, in that it depends upon the fact that the chances or success for the backward in one year are increased commensurately with their lack of success in the previous years, and vice versa. An increase in the effectiveness or reservation in one year decreases

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In A.B.S.K. Sangh (Rly) v. Union of India,1 the Court reinstated the 'carry-

forward rule' as it applied to quotas exceeding 50 per cent of the available

positions, The reservation quota in the case before the Court, taking into account

the previous year's unfilled positions, was 64.4 per cent. The Court stated that the

quota was not constrained to 50 per cent, and that this figure was only for the

guidance of judges. Some excess will not affect the reservation, for only substantial

excess will void it. The Court considered the reservation of 64.4 per cent not to be

excessive.2 Therefore, reservations in excess of 50 per cent are permitted, but

subject to judicial approval. The Mandal Commission case had upheld the decision

in Devadason in finding that the 'carry-forward rule' was valid, provided it did not

result in reservations exceeding the 50 per cent limit.

However, article 16(4- B), inserted full owing the 81st Constitution

Amendment Act 2000, ends the 50 percent limit imposed by the Supreme Court in

the Mandal Commission case. The amendment effectively reinstates the 'carry-

forward rule' as it initially applied, and allows unfilled vacancies of previous years

to be reserved over and above the 50 per cent ceiling.3

The Court ruled in the Mandal Commission case that reservations under

article 16(4) do not apply in relation to promotions, overturning its decisions in A.

B. S. K. Sangh (Rly) V. Union of India,4 General Manager, Southern Rly v.

Rangachari, 5 Comptroller and Auditor General of India v. K.S. Jagannathan,6 and

Stale of Punjab V. Hira Lal.7 Article 16(4-A), inserted under the 77th Constitutional

Amendment Act 1995, overturned this finding. It provides that: 'Nothing in this

article shall prevent the State from making any provision for reservation in matters

the number of reserved seats the following year. Therefore arguments based on ensuring the efficiency or administration carry less weight with regard to the rule than they would in a situation such as that before the court in Balaji, for the application of the rule does not result in an increase in reservation beyond an acceptable level. See Galanter, M., supra n.6. 410. 1 (1981) I SCC 246. 2 Pathak J. dissented from the majority; he found the 50 per cent rule to be fair and reasonable, but said that in view of the majority decision in Thomas, he was bound to uphold the impugned rule as valid. 3 See further Brochure on Reservation and Concessions/or SC, ST. OBC etc. (2004) (Delhi: Nabhi). Chapter /1.137-51. 4 19S1 I SCC 246. 5 AIR 1962 SC 36. 6 19861 SCC 679. 7 1970 3 SCC 567.

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of promotion to any class or classes of posts ... in favour of the Scheduled Castes and

Scheduled Tribes'.

The decision of the Supreme Court in the Mandal Commission case has been

bypassed on these questions. 1 The Mandal Commission case involved only the

Backward Classes, and the Central Government took the view that the Scheduled

Castes and Scheduled Tribes were not affected by the decision.2 In Union of India V.

Virpal Singh.3 The Court attempted to reinstate its position with regard to

promotions, by holding that caste criterion for promotion-violated article 16(4) of

the Constitution. The decision was followed in the case of Ajit Singh Januja V. State

of Punjab,4 where the Court also ruled that provision for reservation was an

enabling provision, not a Fundamental Right. However, in Ashok Kumar Gupta v.

Stale of UP, 5 the Supreme Court held that article l6 (4-A) had converted

reservation into a Fundamental Right.6

The decision exemplifies the nuanced approach of the Indian Supreme Court

to the interpretation of the constitutional special measures provisions. Criticism of

affirmative action provisions have often concentrated on the failure of such

measures to distinguish between privileged members of the beneficiary groups and

those under-privileged members who need the measures the most. The first UN

Special Rapporteur on Affirmative Action, Marc Bossuyt, examined this argument

in his final report:

The two-class theory ... raises the question of who truly benefits

from preferential policies. It appears that it is the most

fortunate segment of the groups designated as beneficiaries

who seem to get the most out of affirmative action measures ...

Beneficiaries of affirmative action programmes tend to be the

wealthier and least-deprived members of a group ... the

1 The amendment also bypassed the Mandal Commission case by allowing more than 50 per cent reservation in Tamil Nadu to be protected from being challenged in court by including the law in the Ninth Schedule of the Constitution. 2 180 Pandey. J.. supra n.18. 125. The amendment thus applies only to the Scheduled Castes and Scheduled Tribes. 3 (1995) 6 SCC 684. 4(1996) 2 SCC 775. 5 (1997) 5 SSC201. 6 See also Commissioner of Commercial Taxes, Hyderabad V. G. Sethutnadhava Rao AIR 1951 SC 226.

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minority members who benefit from such programmes are

likely to come from the top of the minority or female

distribution. Affirmative preference may well shift the social

burden from one group to another.1

In the Mandal Commission case, as outlined in points (iv) and (v) above, the

Court tackled this problem in two ways. First, by stipulating the exclusion of the

'creamy layer' or socially advanced amongst these classes, and second, by allowing

a sub-division between more and less backward. The majority of the judges deemed

this necessary to prevent the advanced sections of the backward classes taking all

the benefits of the reservations.

Finally, in the Mandal Commission case, as described in point (ii) above,

article 16(4) was held not to be an exception to article 16(1) but an independent

clause. In State of Kerala v. N.M. Thomas,2 the court held that it was permissible to

give preferential treatment to Scheduled Castes and Scheduled Tribes under article

16(1). This moved the constitutional protection for special measures and the

reservation of posts for backward classes outside the exception contained in article

16(4), and represented a new interpretation of article 16(1).3

Galanter finds that the radical re-conceptualisation of article 16(1) is

achieved in Thomas at the cost of an unimaginatively narrow reading of what

common sense would view as the more relevant constitutional provision, article

16(4).4 The ultimate significance of Thomas, he writes, is not the enlargement of

state authority to confer preferential treatment. Rather there is the

acknowledgement of a Fundamental Right to substantive equality and the

possibility of affirmative litigation by disadvantaged groups to force the state to

fulfil its responsibilities. Therefore, he argues, the result represents an ironic

reversal; instead of conferring power on the state, and loosening judicial restraints,

1 Bossuyt, M. (2002), Final Report 0/ the Special Rapporteur 011 Affirmative Action, UN Doc. E/CNA/Sub.2/2002121, paragraphs 11 and 12, and n.7: 'a forced transfer of benefits from those least able to afford it to those least in need of it.' 2 186 AIR 1976 SC 490. 3 Pandey, J.,supra n.18, 130. The appeal was decided after the onset of Indira Gandhi's Emergency Rule, and the decision was announced on 19 September 1975, at the end of three months of emergency rule and at the height of optimism that the ruling heralded an 'egalitarian breakthrough'; Galanter, M., supra n.6, 384. 4 Ibid .. 389.

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it could allow for the imposition of a new and onerous accountability on the

government, mediated through the courts.1 This would not be in the interests of the

Scheduled Castes, Scheduled Tribes and Other Backward Classes, for it would mean

that 'compensatory discrimination' would apply, as a Fundamental Right, to all the

disadvantaged, instead of applying only to the weaker sections of the population as

outlined in Balaji.2 The reservation policy could collapse into a diffuse, largely

symbolic, generalised egalitarianism.3

Galanter's use of the phrase 'compensatory discrimination' throughout his

description of the Indian constitutional reservations system is incorrect in relation

to the meaning of 'discrimination' in international law.4 Compensatory

discrimination' and 'positive discrimination' are terms that are still used in

domestic legal systems, and there is much evidence that in the Indian context, the

government continues to describe its constitutional special measures programme

as 'positive discrimination.5 This is not the case with the Supreme Court of India. It

is submitted that the word 'discrimination' should be reserved exclusively for cases

of wrongly unequal treatment, and should not be used in the context of a

reservations or special measures policy, at either domestic or international level.

Bossuyt underlines this point:

While in the minds of some the concept of 'affirmative action' is

also covered by the term 'positive discrimination', it is of the

utmost importance to stress that the latter term makes no

sense. In accordance with the now general practice of using the

term 'discrimination' exclusively to designate 'arbitrary',

'unjust' or 'illegitimate distinctions', the term 'positive

discrimination' is a contradictio in terminis: either the

distinction in question is justified and legitimate, because not

1 Ibid., 394. 2 Balaji v. State of Mysore, AIR 1963 SC 649, 651. 3 Galanter, M., supra n.6. 393-5. He qualifies the comment by stating that this remains just a possible result of the decision. 4 On this point, see McKean, W. (1970), 'The Meaning of Discrimination in International and Municipal Law', British Yearbook of International Law 44. 186 5 In its 1996 State Report to the Committee on the Elimination or Racial Discrimination, India described the reservations systems for the Scheduled Castes and Scheduled Tribes as 'measures of positive discrimination'. Periodic Report -India (1996), CERDICI299/Add.3, para. 6.

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arbitrary, and cannot be called discrimination’, or the

distinction in question is unjustified or illegitimate because

arbitrary, and should not be labelled 'positive'’.1

Using the precise meaning of 'discrimination' as an exclusively negative,

pejorative, wrongly unequal act, which is the case in international law, would mean

that the reservations of article 16(4) would not constitute discrimination, whether

labelled positive or not. They would not represent a violation of the equality rule in

article 16(1). The point was affirmed in the Mandal Commission case, where it was

found that article 16(4) is not an exception to article l6(1), but an independent

clause.

Summing up

Nehru once remarked: 'we cannot have equality because in trying to attain

equality we come up against some principles of equality.’2 In this sentence, Nehru

captures the conceptual difficulties associated with reservations. The sentiment is

nevertheless an erroneous one. Reservations in favour of the Scheduled Castes,

Scheduled Tribes and Other Backward Classes are not against principles of equality

- they are its vindication. The aim of India's constitutional provisions is equality, as

distinguished from equal treatment. Vierdag stresses that equality in this sense

means economic, social and cultural equality, rather than the formal equality that

is the primary feature of most legal systems.3 It rests on an understanding of

equality as incorporating both equality of treatment and inequality of treatment. It

distinguishes between the nature of the treatment and the result of the treatment.

The legal technique of using unequal treatment to achieve equality as a result

implies favourable treatment for those who are socially, economically or culturally

deprived. It also implies unfavourable treatment for those who are not.4

Sathe notes that it is clear that in an unequal society, without special

measures, there would not be any equality.5 In Hariharen Pillai v. State of Kerala,

the High Court described articles 15(4) and 16(4) as giving 'meaning and content

1 Bossuyt, M., supra n.185, para. 5. 2 Nehru, 1., Parliamentary Debates, vol. 12-13 (Part 2). Col. 9617, 29 May 1951. 3 Vierdag, E. (1973), The Concept of Discrimination in International Law (The ague: Martinus Nijhoff), 7 -18. 4 Ibid. 5 Sathe, S., supra n.150, 95.

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to the equality guaranteed by articles 14, 15, 16 and 29.’ 1 The Court stated that 'in

a country like India, where large sections of the people are backward socially,

economically, educationally and politically, these declarations and guarantees

would be meaningless unless provision is also made for the uplift of such backward

classes who are in no position to compete with the more advanced classes’.2 The

Supreme Court stated in Triloki Nath Tiku V. Stale of Jammu and Kashmir:

In order to give a real opportunity to the backward classes to

compete with the better-placed people ... article 16(4) is

included in the Constitution. The predominant concept-

underlying article 16 is equality of opportunity in the matter of

employment; and without detriment to said concept; the State is

enabled to make reservations in favour of backward classes to

give a practical content to the concept of equality.3

In the Court's decision in Viswanath v. Government of Mysore, Hegde J

remarked: 'Advantages secured due to historical reasons cannot be considered as

fundamental rights guaranteed by the constitution. The nation's interest will be

best served ... if the backward classes are helped to march forward and take their

places in line with the advanced sections of the people.’ 4 Similarly, in Balaji,

Gajendragadkar J held: 'unless the educational and economic interests of the

weaker sections of the people are promoted quickly and liberally, the ideal of

establishing social and economic equality will not be attained.5

In general, the judiciary's support for the constitutional reservations policy

is tempered with the need to achieve a balance. In Balaji, Gajengragadkar J stated:

'The interests of the weaker sections of society ... have to be adjusted with

the interests of the community as a whole.’ 6 At times, members have expressed

opposition to reservations. In a dissenting judgment in Thomas, Gupta J. warned

1 Hariliaren Pillni v. State of Kerala AIR 1968 Ker.42, 47. 2 Ibid, 48. 3 Triloki Nath Tiku v. State of Kashmir A.I.R. [1967] SC 1283, 1285. 4 AIR 1964 Mys. 132,136. 5 Balaji v. State of Mysore, AIR 1963 SC 649,661. 6 Ibid, 663.

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that article 16(1) 'speaks of equality of opportunity, not opportunity to achieve

equality’.1 The balancing process can be further complicated by the conflict in the

Constitution between individual fundamental rights and group rights for the

Scheduled Castes, Scheduled Tribes and Other Backward Classes, in the form of

reservations. While the Constitution confers Fundamental Rights on individuals, the

Scheduled Castes, Scheduled Tribes and Other Backward Classes as groups must be

advanced. Therefore, reservations involve tension between individuals and groups

as objects of state policy.2

Overall, the philosophy of the Court is overwhelmingly in favour of

reservations as an essential component of equality. The Court's decision in the

Mandal Commission case illustrates its commitment to enforcing a sophisticated

reservations policy in India that seeks out those most in need. The decision in Balaji

made the crucial point that special measures are not solely for advancing the back

ward. The claims of the backward classes do not run counter to the interests of the

wider public; they are the means of forwarding the public interest in an egalitarian

society.3

The 1950 Constitution of India hears the indelible imprint of the Chairman

of the Drafting Committee, Ambedkar. The reservations therein are the most

advanced in the world, and represent the fulfilment of his political movement

towards legislative and secular solutions to the problem of caste-based

discrimination and untouchability. Like all constitutions, it is a product of its

specific historical circumstances, which must be understood in order to appreciate

the more particular aspects of its provisions, including reservations. That policy

was forged in 1932 in the negotiations that resulted in the Poona Pact, where it

was agreed that in order to keep the Untouchables within Hinduism, legislative

provision would have to be made for their economic and social uplift. Such

provisions were essential in the interests of justice; but they were also part of an

agreement between India's caste Hindu majority and its Dalit minority, whereby

the latter offered its support to a unified front leading up to Independence in

exchange for a promise of fundamental change in its social conditions, enforced by

1 The State of Kerala v. N M. Thomas, AIR 1976 SC 490, 543. 2 Galanter, M., Supra n 6, 381. 3 Balaji v. State of Mysore, AIR 1963 SC 649, 662.

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law, in the newly independent nation. Ambedkar, following the failed negotiations

on the Hindu Code Bill in 1951, felt that this agreement had been breached, and

resigned from his position in the Cabinet. He subsequently led his followers into

Buddhism. The Hindu Code Bill differed from the Constitution in that it was an

attack on the caste system itself, rather than its corollary, untouchability.1 The fact

that the Constitution did not condemn the structure of caste, but only caste- based

discrimination, meant that practices relating to untouchability, pollution and

degradation continued, and appear to continue today. Dalits have turned to the

international community to provide assistance in combating the debilitating effects

of caste, through the mechanism of international human rights law.

Reservations have contributed enormously to the uplift of the Scheduled

Castes, Scheduled Tribes and Other Backward Classes; but reform of the caste

system must continue, and must be addressed at a more fundamental level than its

discriminatory effects. The chapter has sought to present the debates that underpin

the 1950 Constitution, and in so doing, has highlighted dissenting voices which

have pointed out that untouchability is but a symptom of caste; that reservations

do not tackle the caste system itself; and that the root of inequality in India is the

caste system, which was not abolished in 1950.

The need to enhance protection against caste-based discrimination, beyond

the constitutional provisions, led the United Nations treaty-based and charter-

based bodies to explore caste-based discrimination in contemporary Indian society.

Human rights law has developed a body of measures designed to eradicate caste,

which are examined in Chapters 5 and 6. This movement is subsumed within the

greater fight against racial discrimination, caste being unequivocally perceived as

a form of racial discrimination within the United Nations. The primary vehicle for

eradicating all forms of racial discrimination, including caste, the International

Convention on the Elimination of All Forms of Racial Discrimination 1965, is the

subject of the following chapter.

1 According 'The Bill was an attempt to effectively transform the hierarchical relations embodied in the Hindu family and the caste system': Rodrigues, V., supra n.109, Introduction, 15.

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Judicial Response and Reservations

Indian judiciary has pronounced some judgments upholding reservations

and some judgments for fine-tuning their implementation. Lots of judgments

regarding reservations have been modified subsequently by Parliament through

constitutional amendments. State and central governments have flouted some

judgments. Given below are the major judgments and their implementation status:

1. In State of Madras v. Smt. Champakam Dorairanjan, AIR 1951 Sc 226, the

Supreme Court pronounced that caste-based reservations as per the

Communal Award violated Article 15(1)

Implementation Details: The First Constitutional Amendment (Article 15

(4)) was introduced to make the judgment invalid.

2. In MR Balaji Vs. Mysore, AIR 1963 Sc 649, the court put 50 percent cap on

reservations.

Implementation Details: Almost all states except Tamil Nadu (69 percent,

Under 9th Schedule) and Rajasthan (68 percent quota including 14 percent

for forward castes, post Gujjar violence 2008) have not exceeded 50 percent

limit. Tamil Nadu exceeded limit in 1980. Andhra Pradesh tried to exceed

limit in 2005 which was again stalled by the High Court.

3. The Supreme Court, in Indira Sawhney & Ors v. Union of India, AIR 1993 Sc

477, (known as Mandal Commission Case), upheld the implementation of

separate reservation for other backward classes in central government jobs.

Ordered to exclude creamy layer of other backward classes from enjoying

reservation facilities. Ordered to restrict reservations within 50% limit.

Declared separate reservations for economically poor among forward

castes as invalid.

Implementation Details: Judgment implemented. All states except Tamil

Nadu implemented. Recent Reservation Bill for providing reservations to

other backward classes in educational institutions also has not excluded

creamy layer in some states. (Still under the consideration of Standing

Committee). All states except Tamil Nadu followed.

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4. In General Manager, S Rly. Vs Rangachari, AIR 1962 SC 36, State of Punjab

vs. Hiralal, 1970 (3) SCC 567, Akhil Bharatiya Soshit Karamchari Sangh

(Railway) vs. Union of India, (1981) 1 SCC 246, it was held that reservation

in appointments or posts under Article 16(4) included promotions. This was

overruled in Indira Sawhney & Ors Vs. Union of India. AIR 1993 SC 477:

1992 Supp (3) SCC 217 and held that reservations cannot be applied in

promotions.

Implementation Details: 77th Constitution Amendment (Article 16A) & (16

4B) introduced to make judgment as invalid. M. Nagraj & Ors vs. Union of

India and Ors., AIR 2007 SC 71, held the amendments constitutional. It was

held that:

a) Article 16 (4A) and 16(4B) flow from Art. 16(4). Those constitutional

amendments do not alter the structure of Art. 16(4).

b) Backwardness and inadequacy of representation are the

controlling/compelling reasons for the state to provide reservations

keeping in mind the overall efficiencies of state administration.

c) The Government has to apply cadre strength as a unit in the

operation of the roaster in order to ascertain that whether as given

class/group is adequately represented in the service. Roaster has to

be post specific with in-built concept of replacement and not vacancy

based.

d) If any authority thinks that for ensuring adequate representation of

backward class or category, it is necessary to provide for direct

recruitment therein, it shall be open to do so.

e) Backlog vacancies to be treated as a distinct group and are excluded

from the ceiling limit f 50%.

f) If a member from the reserved category is selected in the general

category, his selection will not be counted against the quota limit

provided to his class and reserved category candidates are entitled

to compete for the general category post.

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g) The reserved candidates are entitled to compete with the general

candidates for promotion to the general post in their own right. On

their selection, they are to be adjusted in the general post as per the

roster and the reserved candidates should be adjusted in the points

earmarked in the roster to the reserved candidates.

h) Each post gets marked for the particular category of candidate to be

appointed against it and any subsequent vacancy has to be filled by

the category alone (replacement theory) RK Sabharwal Vs. State of

Punjab, AIR 1995 SC 1371 : (1995) 2 SCC 745. The operation of a

roster, for filling the cadre-strength, by itself ensures that the

reservation remains within the 50% limit.

5. In Union of India vs. Varpal Singh, AIR 1996 SC 448, and Ajitsingh Januja &

Ors vs. State of Punjab, AIR 1996 Sc 1189, it was held that a roster point

promotees getting the benefit of accelerated promotion would not get

consequential seniority and the seniority between the reserved category

candidates and general candidates in promoted category shall be governed

by their panel position. This was overruled in Jagdish Lal and others vs.

State of Haryana and Others (1997) 6 SCC 539. It was held that the date of

continuous officiation has to be taken into account and if so, the roster-

point promotes were entitled to the benefit of continuous officiation.

Ajitsingh Januja & Ors vs. State of Punjab & Ors, AIR 2001 SC 250, held that

roster promotions were meant only for the limited purpose of due

representation of backward classes at various levels of service and

therefore, such roster promotions did not confer consequential seniority to

the roster point promote.

Implementation Details: the 85th Constitution Amendment inserted

Consequential Seniority inserted in Article 16 (4A) to make the judgment

invalid. M. Nagraj & Ors Vs. Union of India and Ors. AIR 2007 SC71, held the

amendments constitutional. Jagdish Lal and others vs. State of Haryana and

Others. (1997) 6 SCC 538, held that the date of continuous officiation has to

be taken into account and if so, the roster-point promotes were entitled to

the benefit of continuous officiation.

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6. S. Vinodkumar vs. Union of India, 1996 (6) SCC 580, held that relaxation of

qualifying marks and standard of evaluation in matters of reservation in

promotion was not permissible.

Implementation Details: the Constitution (82nd) Amendment Act inserted a

proviso at the end of Article 335. M Nagraj & Ors vs. Union of India and Ors.

AIR 2007 SC 71, held the amendments constitutional.

In the above said judgment, the Supreme Court advised State of Tamil Nadu

to follow 50% limit.

Implementation Details: Tamil Nadu reservations were put under the 9th

Schedule of the Constitution. In I.R. Coelho (Dead) by LRS. Vs. State of Tamil

Nadu, 2007 (2) SCC 1:2007 AIR(SC)861, it was held that the Ninth Schedule

law has already been upheld by the court, it would not be open to challenge

such law again on the principles declared by this judgment. However, if a

law held to be violative of any rights in Part III is subsequently incorporated

in the Ninth Schedule after 24 April 1973, such a violation/infraction shall

be open to challenge on the ground that it destroys or damages the basic

structure as indicated in Article 21 read with Article 14, Article 19 and the

principles underlying there under. Action taken and the transactions

finalized as a result of the impugned Acts shall not be open to challenge.

7. In Unnikrishnan, J.P. & Ors. Vs. State of Andhra Pradesh & Ors., (1993)

(1)SCC645), it was held that the right to establish educational institutions

can neither be a trade or business not can it be a profession within the

meaning of Article 19(1)(g). This was overruled in T.M.A. Pai Foundation vs.

State of Karnataka, (2002) 8 SCC 481, and P.A. Inamdar v. State of

Maharashtra, 2005 AIR (SC) 3226. The Supreme Court ruled that

reservations could not be enforced on private unaided educational

institutions.

Implementation Details: The 93rd Constitutional Amendment introduced

Article 15(5). In Ashoka Kumar Thakur vs. Union of India, it was held that:

a) The Constitution (Ninety-Third Amendment) Act, 2005 does not

violate the “basic structure” of the Constitution as far as it relates to

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the state-maintained institutions and aided educational institutions.

The question whether the Constitution (Ninety-Third Amendment)

Act, 2005 would be constitutionally valid or not so far as “private

unaided” educational institutions are concerned, is left open to be

decided in an appropriate case.

b) “Creamy layer” principle is one of the parameters to identify

backward classes. Therefore, principally, the “creamy layer’ principle

cannot be applied to STs and SCs, as SCs and STs are separate classes

by themselves.

c) Preferably, there should be a review after ten years to take note of

the change of circumstances.

d) A mere graduation (not technical graduation) or professional

deemed to be educationally forward.

e) Principle of exclusion of layer applicable to OBC’s.

f) The Central Government shall examine the desirability of fixing cut-

off marks in respect of the candidates belonging to the Other

Backward Classes (OBCs) to balance reservation with other societal

interests and to maintain standards of excellence. This would ensure

that quality and merit would not suffer. If any seats remain vacant

after adopting such norms candidates from general categories shall

fill them up.

g) As far as determination of backward classes is concerned, the Union

of India should issue a notification. This can be done only after

exclusion of the creamy layer for which the Central Government

must obtain necessary data from the State Governments and Union

Territories. Such Notification is open to challenge on the ground of

wrongful exclusion or inclusion. Norms must be fixed keeping in view

the peculiar features in different States and Union Territories. There

has to be proper identification of Other Backward Classes (OBCs).

For identifying backward classes, the Commission set up pursuant to

the directions of this court in Indira Sawhney has to work more

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effectively and not merely decide applications for inclusion or

exclusion of castes.

h) The Parliament should fix a deadline by which time free and

compulsory education will have reached every child. This must be

done within six months, as the right to free and compulsory

education is perhaps the most important of all the fundamental

rights (Article 21 A) for without education, it becomes extremely

difficult to exercise other fundamental rights.

i) If materials shown to the Central Government that the institution

deserves to be included in the Schedule (institutes which are

excluded from reservations) of the Central Educational Institutions

(Reservation in Admission) Act, 2006 (No.5 of 2007), the Central

Government must take an appropriate decision on the basis of

materials placed and on examining the concerned issues as to

whether the institution deserves to be included in the Schedule of the

said Act as provided in Section 4 of the said Act.

8. In Suraj Bhan Meena vs. State of Rajasthan, (2011) 1 SCC 467, the court held

that in view of M. Nagraj & Ors vs. Union of India and Ors., AIR 2007 Sc 71, if

the state wants to frame rules with regard to reservation in promotions and

consequential seniority it has to satisfy itself with quantifiable date, that is

there is backwardness, inadequacy of representation in public employment

and overall administrative inefficiency and unless such an exercise was

undertaken by the state government the rules in promotions and

consequential seniority cannot be introduced.

Reservation in promotion is dependent on the inadequacy of representation

of members of SC, ST and backward classes and subject to the condition of

ascertaining whether such reservation was at all required. No exercise was

undertaken to acquire quantifiable data regarding inadequacy of

representation. The Rajasthan High Court rightly quashed the notifications

providing for consequential seniority and promotion to the members of SC

and ST communities and the same does not call for any interference. S.

Balakrishnan vs. S. Chandrasekar (28/2/2005). In the Government of Tamil

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Nadu vs. Registration Department SC/ST (9/12/2005), the Madras High

Court has held that reservation in promotion is available only to SC and ST

and not to backward class (OBC) and most backward class (MBC).

9. In Union of India vs. S. Kalugasalamoorthy, W.P. No.15926/2007, the court

held that when a person is selected on the basis of his own seniority, the

scope of considering and counting him against.

State of Uttaranchal [Vs] Sandeep Kumar Singh & Ors.

Constitution of India, 1950, Article 141 – Principle of Obiter Dicta – Two

Judge Bench cannot hold that the decision of a three Judge Bench rendered

following the Constitution Bench judgments was per incuriam - Law laid down by

the Supreme Court in a decision delivered by a Bench of larger strength is binding

on any subsequent Bench of lesser or coequal strength , bench of lesser Coram

cannot disagree or dissent from the view of the law taken by a Bench of larger

Coram, in case of doubt all that the Bench of lesser Coram can only invite the

attention of the Chief Justice and request for the matter being placed for hearing

before a Bench of larger Coram than the Bench whose decision has come up for

consideration - Only a Bench of coequal strength to express an opinion doubting

the correctness of the view taken by the earlier Bench of coequal strength,

whereupon the matter may be placed for hearing before a Bench consisting of a

Coram larger than the one which pronounced the decision laying down the law the

correctness of which is doubted.

O R D E R

1. The question which arises for consideration in the present appeal is as to

whether a person belonging to a scheduled caste in relation to a particular State

would be entitled or not, to the benefits or concessions allowed to scheduled caste

candidate in the matter of employment, in any other State?

2. G.B. Pant University of Agriculture & Technology, Pant Nagar,

Uttaranchal issued employment notice inviting applications from candidates all

over the country for various posts mentioned therein. The notification, inter alia,

porivded:

"The vacancies are advertised under the reservation roster supplied by the

Uttaranchal Government."

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3. Respondents applied for post of Assistant Professor in different

departments as scheduled caste reserved category candidates. In support of their

caste, certificates issued by the States of U.P, Bihar and Tripura were produced.

Respondents were successful in the selection conducted by the University.

Appellant, State of Uttaranchal, wrote a letter to the Vice-Chancellor of the

University inter alia stating that reservations in the appointment have been made

in violation of reservation policy of the State and all the appointments made by the

University in violation of the reservation policy of the State were accordingly

cancelled. University, accordingly, withdrew the appointment letters of the

respondents under the instructions of the State Government on the ground that

they do not belong to scheduled caste category of State of Uttaranchal. The

respondents filed writ petitions in the High Court challenging the termination

letter. The High Court allowed the writ petitions. The High Court without even

adverting to the Constitution Bench decisions in Marri Chandra Shekhar Rao vs.

Dean, Seth G. S. Medical College & Ors.1 and Action Committee on Issue of Caste

Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra &

Anr. Vs. Union of India & Anr.2 allowed the writ, petitions filed by the respondents

and accordingly quashed the termination orders.

4. In Marri Chandra Shekhar Rao, a Constitution Bench of this Court while

interpreting Article 341 as well as Article 342 observed:

"...that the expression `for the purposes of this Constitution' in Article 341 as well as

in Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so

specified would be entitled to enjoy all the constitutional rights that are enjoyable

by all the citizens as such. Constitutional right, e.g., it has been argued that right to

migration or right to move from 1 (1990) 3 SCC 130 2 (1994) 5 SCC 244 one part to

another is a right given to all -- to Scheduled Castes or Tribes and to non- scheduled

castes or tribes. But when a Scheduled Caste or Tribe migrates, there is no

inhibition in migrating but when he migrates, he does not and cannot carry any

special rights or privileges attributed to him or granted to him in the original State

specified for that State or area or part thereof. If that right is not given in the

migrated State it does not interfere with his constitutional right of equality or of

migration or of carrying on his trade, business or profession. Neither Article 14, 16,

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19 nor Article 21 is denuded by migration but he must enjoy those rights in

accordance with the law if they are otherwise followed in the place where he

migrates. There should be harmonious construction; harmonious in the sense that

both parts or all parts of a constitutional provision should be so read that one part

does not become nugatory to the other or denuded to the other but all parts must

be read in the context in which these are used. It was contended that the only way

in which the fundamental rights of the petitioner under Articles 14, 19(1) (d), 19(1)

(e) and 19(1) (f) could be given effect to is by construing Article 342 in a manner by

which a member of a Scheduled Tribe gets the benefit of that status for the

purposes of the Constitution throughout the territory of India. It was submitted

that the words "for the purposes of this Constitution" must be given full effect.

There is no dispute about that. The words "for the purposes of this Constitution"

must mean that a Scheduled Caste so designated must have right under Articles 14,

19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area

where he migrates or where he goes. The expression "in relation to that State"

would become nugatory if in all States the special privileges or the rights granted

to Scheduled Castes or Scheduled Tribes are carried forward. It will also be

inconsistent with the whole purpose of the scheme of reservation. In Andhra

Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a

boy or a child who grows in that area is inhibited or is at disadvantage. In

Maharashtra that caste or that tribe may not be so inhibited but other castes or

tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a

young boy or a child and goes in a completely different atmosphere or Maharashtra

where this inhibition or this disadvantage is not there, then he cannot be said to

have that reservation which will denude the children or the people of Maharashtra

belonging to any segment of that State who may still require that protection. After

all, it has to be borne in mind that the protection is necessary for the disadvantaged

castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra

Pradesh. Thus, balancing must be done as between those who need protection and

those who need no protection, i.e., who belong to advantaged castes or tribes and

who do not. Treating the determination under Articles 341 and 342 of the

Constitution to be valid for all over the country would be in negation to the very

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purpose and scheme and language of Article 341 read with Article 15(4) of the

Constitution."

"...But having regard to the purpose, it appears to us that harmonious

construction enjoins that we should give to each expression --"in relation to that

State" or "for the purposes of this Constitution" -- its full meaning and give their full

effect. This must be so construed that one must not negate the other. The

construction that reservation made in respect of the Scheduled Caste or Tribe of

that State is so determined to be entitled to all the privileges and rights under the

Constitution in that State would be the most correct way of reading, consistent with

the language, purpose and scheme of the Constitution. Otherwise, one has to bear

in mind that if reservations to those who are treated as Scheduled Caste or Tribe in

Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted

(sic inducted) in the State of Maharashtra or other States where that caste or tribe

is not treated as Scheduled Caste or Scheduled Tribe then either reservation will

have the effect of depriving the percentage to the member of that caste or tribe in

Maharashtra who would be entitled to protection or it would denude the other

non-Scheduled Castes or non- Scheduled Tribes in Maharashtra to the proportion

that they are entitled to. This cannot be logical or correct result designed by the

Constitution."

5. In Action Committee on Issue of Caste Certificate to Scheduled Castes &

Scheduled Tribes in the State of Maharashtra & Anr., it is held:

"On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the

power of the President is limited to specifying the castes or tribes which shall, for

the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled

Tribes in relation to a State or a Union Territory, as the case may be. Once a

notification is issued under clause (1) of Articles 341 and 342 of the Constitution,

Parliament can by law include in or exclude from the list of Scheduled Castes or

Scheduled Tribes, specified in the notification, any caste or tribe but save for that

limited purpose the notification issued under clause (1), shall not be varied by any

subsequent notification. What is important to notice is that the castes or tribes

have to be specified in relation to a given State or Union Territory. That means a

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given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the

State or Union Territory for which it is specified." It is further held:

"We may add that considerations for specifying a particular

caste or tribe or class for inclusion in the list of Scheduled

Castes/Schedule Tribes or backward classes in a given State

would depend on the nature and extent of disadvantages and

social hardships suffered by that caste, tribe or class in that

State which may be totally non est. in another State to which

persons belonging thereto may migrate. Coincidentally it may

be that a caste or tribe bearing the same nomenclature is

specified in two States but the considerations on the basis of

which they have been specified may be totally different. So

also, the degree of disadvantages of various elements, which

constitute the input for specification, may also be totally

different. Therefore, merely because a given caste is specified

in State A as a Scheduled Caste does not necessarily mean that

if there be another caste bearing the same nomenclature in

another State the person belonging to the former would be

entitled to the rights, privileges and benefits admissible to a

member of the Scheduled Caste of the latter State "for the

purposes of this Constitution". This is an aspect which has to

be kept in mind and which was very much in the minds of the

Constitution-makers as is evident from the choice of language

of Articles 341 and 342 of the Constitution."

6. The latter Constitution Bench reiterated the view taken by former

Constitution Bench in Marri Chandra Shekhar Rao case.

7. In S. Pushpa & Ors. vs. Sivachanmugavelu & ors. 3, a three Judge Bench

after referring to Marri Chandra Shekhar Rao & Action Committee cases held:

"Part XVI of the Constitution deals with special provisions relating to certain

classes and contains Articles 330 to 341. Articles 330 and 332 make provision for

reservation of seats in the House of the People and Legislative Assemblies of the

States respectively, for Scheduled Castes and Scheduled Tribes. Similar provisions

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have been made for Anglo- Indian community in Articles 331 and 333. Article 338

provides that there will be a Commission for the Scheduled Castes to be known as

National Commission for the Scheduled Castes and it also provides for its

composition, powers and duties. Clause (2) of Article 330 provides that the number

of seats 3 (2005) 3 SCC 1 reserved in the States or Union Territories for Scheduled

Castes or Scheduled Tribes shall bear, as nearly as may be, the same proportion to

the number of seats allotted to that State or Union Territory in the House of the

People as the population of the Scheduled Castes in the State or Union Territory or

of the Scheduled Tribes in the State or Union Territory, as the case may be, in

respect of which seats are so reserved, bears to the total population of the State or

Union Territory. Similar provision for reservation of seats in favour of SC/ST in the

Legislative Assembly of any State is contained in clause (3) of Article 332 of the

Constitution. Therefore, in order to ascertain the number of seats which have to be

reserved for Scheduled Castes or Scheduled Tribes in the House of the People or in

the Legislative Assembly, it is absolutely essential to ascertain precisely the

population of the Scheduled Castes or Scheduled Tribes in the State or Union

Territory. A fortiori, for the purpose of identification, it becomes equally important

to know who would be deemed to be Scheduled Caste in relation to that State or

Union Territory. This exercise has to be done strictly in accordance with the

Presidential Order and a migrant Scheduled Caste of another State cannot be taken

into consideration otherwise it may affect the number of seats which have to be

reserved in the House of the People or Legislative Assembly. Though, a migrant

SC/ST person of another State may not be deemed to be so within the meaning of

Articles 341 and 342 after migration to another State but it does not mean that he

ceases to be an SC/ST altogether and becomes a member of a forward caste.

Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all

citizens in the matter of appointment to any office or of any other employment

under the State. Clauses (3) to (5), however, lay down several exceptions to the

above rule of equal opportunity. Article 16(4) is an enabling provision and confers

a discretionary power on the State to make reservation in the matter of

appointments in favour of "backward classes of citizens" which in its opinion are

not adequately represented either numerically or qualitatively in services of the

State. But it confers no constitutional right upon the members of the backward

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classes to claim reservation. Article 16(4) is not controlled by a Presidential Order

issued under Article 341(1) or Article 342(1) of the Constitution in the sense that

reservation in the matter of appointment on posts may be made in a State or Union

Territory only for such Scheduled Castes and Scheduled Tribes which are

mentioned in the Schedule appended to the Presidential Order for that particular

State or Union Territory. This article does not say that only such Scheduled Castes

and Scheduled Tribes which are mentioned in the Presidential Order issued for a

particular State alone would be recognised as backward classes of citizens and

none else. If a State or Union Territory makes a provision where under the benefit

of reservation is extended only to such Scheduled Castes or Scheduled Tribes which

are recognised as such in relation to that State or Union Territory then such a

provision would be perfectly valid. However, there would be no infraction of clause

(4) of Article 16 if a Union Territory by virtue of its peculiar position being

governed by the President as laid down in Article 239 extends the benefit of

reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not

mentioned in the Schedule to the Presidential Order issued for such Union

Territory. The UT of Pondicherry having adopted a policy of the Central

Government where under all Scheduled Castes or Scheduled Tribes, irrespective of

their State are eligible for posts which are reserved for SC/ST candidates, no legal

infirmity can be ascribed to such a policy and the same cannot be held to be

contrary to any provision of law."

A two Judge Bench in Subhash Chandra & Anr. vs. Delhi Subordinate

Services Selection Board & Ors.4 held that the dicta in S. Pushpa case is an obiter

and does not lay down any binding ratio. We may notice that a three Judge Bench

in S. Pushpa case relied on Marri Chandra Shekhar Rao & Action Committee... cases

and understood the ratio of those judgments in a particular manner. In our

considered opinion, it was not open to a two Judge Bench to say that the decision of

a three Judge Bench rendered following the Constitution Bench judgments to be per

incuriam.

8. In Central Board of Dawoodi Bohra Community & Anr. vs. State of

Maharashtra & Anr.5, a 4 (2009) 15 SCC 458 5 (2005) 2 SCCC 673 Constitution

Bench of this Court in categorical terms held that the law laid down by the

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Supreme Court in a decision delivered by a Bench of larger strength is binding on

any subsequent Bench of lesser or coequal strength. A Bench of lesser Coram cannot

disagree or dissent from the view of the law taken by a Bench of larger Coram. In

case of doubt all that the Bench of lesser Coram can do is to invite the attention of

the Chief Justice and request for the matter being placed for hearing before a Bench

of larger Coram than the Bench whose decision has come up for consideration. It

will be open only for a Bench of coequal strength to express an opinion doubting

the correctness of the view taken by the earlier Bench of coequal strength,

whereupon the matter may be placed for hearing before a Bench consisting of a

Coram larger than the one which pronounced the decision laying down the law the

correctness of which is doubted.

9. In our view, a two Judge Bench of this Court could not have held the

decision rendered by a three Judge Bench in S. Pushpa case to be obiter and per

incuriam.

10. A very important question of law as to interpretation of Articles 16 (4),

341 and 342 arises for consideration in this appeal. Whether Presidential Order

issued under Article 341(1) or Article 342(1) of the Constitution has any bearing on

the State's action in making 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? The extent and nature of

interplay and interaction among Articles 16(4), 341(1) and 342(1) of the

Constitution is required to be resolved.

11. For the aforesaid reasons, therefore, in our view, it would be appropriate

that this case is placed before the Hon'ble the Chief Justice of India for constituting

a Bench of appropriate strength. The registry is, accordingly, directed to place the

papers before the Hon'ble the Chief Justice of India for appropriate directions.1

1 Supreme Court of India,CIVIL APPEAL NO. 4494 OF 2006,Hon'ble Judge(s): B S Reddy, S S Nijjar, Date of Judgment: 7 October 2010, State Of Uttaranchal vs Sandeep Kumar Singh & Ors.

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CONSTITUTIONAL POLCY OF AFFIRMATIVE ACTION AND JUDICIAL RESPONSE: INDO-

AMERICAN EXPERIENCE

The concept of Affirmative action has been used widely in western

multicultural societies, especially in the United States of America to redress the

long historical, racial declination. It is a governmental remedy to the effects of

historical disadvantaged status of certain racial-ethnic groups, communities or

classes. It is the name of various policies designed to overcome past and present

exclusion of certain sections and provide them an opportunity in the traditional

denied fields.

The global history of different time reveals the vivid account o the suffering

of certain classes. The historical or sociological sufferings of blacks in America, Jew

during the middle ages in Europe, Catholics in England and the shudras or Anti-

shudras in India ha generated the new kind of jurisprudence and States responses.

The Affirmative Action Programme (AAP) in different States has been the

comprehensive package to remove such historical wrongs.

It is a general presumption that the affirmative action originated in United

States of America in the context of historical suffering of Blacks or Afro-Americans.

It is true but partly. Because, although, Americans declared their ‘Declaration of

Independence’ on July4, 1776 stating that, “all men are created equal and are

endowed with certain unalienable rights” ideals of liberty, equality and

happiness were confined to white men only, leaving the huge class of African-

Americans to live and die in slavery. According to Roger Wilkins, American

historian, ‘blacks have a 375-year history on this continent: 245 involving

slavery, 100 involving legalized discrimination, and only 30 involving

anything else.’1

The US Constitution constitutionalized a system of slavery by the provisions,

such as, Article 1, Section 2 and 9 and Article 4, Section 2, Clause 3. Article 1,

Sectopm 9, prevented the Congress from ending slave trade until 1808. Article 4

1 On April 19-20, 2003.

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directed States to deliver escaped slaves and prohibited States from discharging

them. Thus, the Constitution makers of USA accepted the institution of slavery as it

existed. Initially the social and educational awakening among the blacks was

brought about by the efforts of Quakers Movement in 1775 through the

Pennsylvania Abolition Society, much before the Constitution of US came into force.

But with the adoption of Bill of Rights in 1791 and subsequently the abolition of

slavery and acceptance of equal protection clause to all including blacks, the US

perception towards the blacks underwent a radical change. In a response to civil

rights movement, USA began to respond positively.1 As a result, for the first time,

the phrase ‘affirmative action’ was used in US, on March 6, 1961 in the Executive

Order number 10925 of 1961, issued by President John Kennedy. The order stated,

“The contractor will take affirmative action to ensure the

applicants are employed, and employees are treated during

employment without regard to their race, creed, color, or

national origin,”

In India there existed and in some quarters even today exists a class of

outcastes, the untouchables at the lowest layer of the social order facing

discrimination in social, educational, economic and political arena. This class of

human beings was without the status of human being. Unjust socio-religious,

cultural sanctions and the lawlessness laws denied them even minimum basic

rights, even right to be a human being. They were considered as “untouchables”

and hence unfit for the human association.

In the pre-independence period, in some of the regions of the country, there

was not only the practice of untouchability but it was also clubbed with the system

of slavery. In the Travancore Princely State (now Kerala State), slavery was in its

worst form. The slavery was not only recognized but there were open markets of

slave trade. Male and female, mother and child, husband and wife were separated

and sold to different masters of different regions. Slavers were used to plough land

1 See. Alfred H. Kelly, Winfred Harbinson and Herman Blez, “The American Constitution Its Origins and Development’,Pp. 602-634, Sixth Edition. Tata Mcgraw-Hill Publishing Company, New Delhi, 1986.

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long with bullocks. They were sacrificed to please Gods and Goddesses. It were the

Britishers who prohibited slave trade in British India in 1843. In Travancore State

the slave trade was prohibited in 1854 but not the slavery. Praedial slavery was

common to considerable parts of western coast. The murder of a slave was scarcely

considered as a crime.

From such a kind of historical account, it is clear that in pre-independent

India there was not only the prevalence of the system of caste-untouchability and

exploitation but also in some parts of the country it was mixed up with the system

of slavery. The downtrodden classes were deprived of vital opportunities and their

participation in the field of social, economical, political, educational and national

life. But during British rule, some rulers like Rajarshi Shahuji Maharaj or Kolhapur

in 1902, Krishnaraja Wadiyar or Mysore in 1924 and Sayajirao Gaikwad of Baroda

introduced in their States several affirmative action programmes, uplifting the

victims of caste untouchability culture.1

With the constitutional revolution in 1950, for the first time, in all spheres,

legally the doors of development were thrown open to Indian subjugated classes.

The Constitution put completely an end to the inhuman practices of untouchability,

oppression, and birth based privileges. The Constitution makers of India along with

the fundamental doctrine of equality adopted the policy of affirmative action in the

form of preferential treatment to secure overall development of the socially and

educationally oppressed sections, such

As Scheduled Castes, Scheduled Tribes, Other Backward Classes, Women,

Children and other weaker Sections. Protective discrimination and affirmative

action for the downtrodden people have been envisaged in our constitutional

scheme despite the fact that the equality clause enshrined under Article 14 of the

Constitution of India is of great significance.2

Thus, the policy of protective discrimination or reverse discrimination or

positive discrimination or preferential treatment had its roots in the historical as

well as sociological wrongs based upon compensatory justice. The policy of

1 For details see-Mane Suresh, ‘The Glimpses of Socio-Cultural Revolts in India’, Sumrudh Bharat Publication, Mumbai, 2006. 2 See- F.V. Chinnaiah V. State of A.P. & Others (2005) 1 SCC 394.

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affirmative action haw been an outcome of the constitutional declaration of

making free India through a new Constitution, to feed the starving people, and to

cloth the naked masses and to give every Indian the fullest opportunity to develop

himself according to his capacity.1 In pursuance of the social reconstruction

agenda, the Constitution of India has provided with many radical provisions to

reconstruct earlier unjust social order. Accordingly, the concept of equality has

been provided as one of the basic props of the constitutional philosophy and

affirmative action programme as one of the prime foundations of social and

economic revolution.

In pursuance of the policy of affirmative action, newborn Indian republic

commenced its journey towards social justice through legislative enactments,

executive orders, scheme of reservations to SCs, STs and OBCs in the fields of

education, State employment and in political institutions of governance. Through

the financial assistance, new land relations with weaker sections, landless-bonded

labourers, marginal landholders and special component plan for SCs and Tribal

sub-plan for STs, the State strived to fulfill the aspirants of affirmative actions.

It is true that in this direction, in the last 62 years of constitutional

governance, some progress has been made by weakening the social mechanism of

caste-inequality-exploitation as well as by including backward classes, such as, SCs,

STs, OBCs, MBCs and denotified tribes in the governing process through the system

of constitutional policy of reservations and other welfare measures. However, there

is a long way to go before social equality, educational equality, freedom from caste

oppression, freedom from hunger and economic dependence are achieved. In this

endeavor, the State has never provided the comprehensive package in its fullness.

The most unfortunate part is that whatever package has been offered the

governing class mostly had no political, administrative will to back up it, resulting

no success.

1 Declaration of Constitutional Objectives, Jawaharlal Nehru’s Speech in the Constituent Assembly on 13th December, 1946.

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“The outcome of the failure to provide the comprehensive

package envisaged by the Constitution gives material for a

sobering thought. More than half century after the Constitution,

the bulk of the SC families remain agricultural wage labourers

as in the past many centuries. The bulk of STs continue to

remain in remote areas and are being progressively deprived of

their lands converting many of them into agricultural

labourers. The bulk of the backward classes pertaining to

economic categories like traditional artisans, fisher-folks and

the like are being deprived of their traditional occupations

while being denied access to relevant technology and modern

occupations, thereby pushing them into the unorganized labour

force. All the three categories continue to be the victims, in

varying forms and degrees, of all-round deprivations,

discriminations and disabilities, in all spheres-economic,

educational, social-in the case of SCs extending to the extreme

of untouchability and in the case of STs to the extreme of

isolation.” 1

In comparison to the Indian policy makers and their attitudes towards the

constitutional affirmative programmes, the US policy makers have responded very

well to the historical need. In the backdrop of the strong force of civil rights

movement and changed socio-economic scenario, in 1964, when the Civil Rights Act

was enacted, American President at that time, Lyndon B. Johnson admitted that

inequality cannot be removed by simply passing laws. He stated,

“Freedom is not enough. You do not wipe away the scars of

centuries by saying that: now you are free to go where you

want, and do as you desire, and choose the leaders you please.

You do not take a person who, for years, as been hobbled by

1 Report of the National Commission to Review the working of the Constitution. Vol. I, Pp 194-195, Universal Law Publishing Co. Pvt. Ltd, Delhi, 2002.

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chains and liberate him, bring him up to the starting line of a

race and then say you are free to compete with all the others.” 1

With such positive attitude at the highest decision making level, the empowerment

movement of black begun in USA. In contrast, t that, in India soon after the

Constitutional revolution, the preferential policy for SCs and STs commenced with

the negative attitude of the Supreme Court of India in the case of State of Mandal V.

Champakam Doorairajan2 in 1951. Although, the decision was overruled by the

letter from the first Prime Ministers of States nullifying the spirit of amendment.

The letter conveyed.

“…..But if we go in for reservation on communal and cast basis,

we swamp the bright and able people remain second rate or

third rate…..This way lies not only folly, but disaster, Let us help

the backward group by all means, but never at the cost of

efficiency” 3

Surprisingly, here Nehur’s commitment to wipe out every tear from

everybody’s eye went on missing.

In the 19th century, in USA, two decisions of the US Supreme Court, in the

cases of Dred Scott V. Sandoford (1856) and Plessey V. Froruson (1896) laid

down the legal foundation for slavery and segregation of blacks, Negroes or Afro-

Americans. In Dred Scott V. Sandoford case, a black slave traveled with his owner to

a free territory where slavery had been barred by a national law known as the

Missouri Compromise, on return t Missouri, Dred Scott stated a lawsuit for his

freedom contending hat his stay in a free territory made him a free man. At that

Southern States of US held the view that, ‘under the Constitution, Congress has no

power to forbid slavery in the new territories’ whereas, Northern States held that

‘Congress does have this power’ In this controversial background, the Supreme

Court, by a 7 to 2 vote, through Chief Justice Taney, on March 6, 1857 declared, that

1 Chetan Dhruve, ‘Learn Social Justice From US Inc’, The Indian Express, July 22, 2005, New Delhi. 2 AIR 1951 SC 226. 3 See-Nani Palkhiwala, ‘We the Nation’, P. 179, (1994).

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people of African descent brought into the United States and held as slaves and held

as slaves (or their descendants, whether or not they were slaves) were not

protected by the Constitution and could never be US Citizens. It held.

“Black slaves are property brought and sold as such, under the

Constitution, this property cannot be taken away form owners.

Scott could not sue, because he was still a slave and slave was

not a citizen because he was a Negro and a slave.”

The court also held Missouri Compromise, by which the Congress had barred

slavery in a territory, as unconstitutional. The decision shocked the public

conscience and New York Tribune described it as “wicked and false judgment”. The

decision was profound and had major political as well as legal effects, which

resulted into the Lincoln – Douglas Debates in 1858 that explored the problem of

slavery in American.

The US Civil War (1861-1865) ended with President Abraham Lincoln’s

Emancipation Proclamation freeing the slaves on January 1, 1863. Still, Southern

States passed pro-slavery a series of measures, which came to be known as the

‘Black Codes’. It began with the State of Mississippi in November 1865 and later on

followed by other States. The Civil War abolished the slavery but southern states

tried to reinstate it 13th, 14th and 15th were added to the US Constitution. 13th

amendment (December 18, 1865) abolished the slavery whereas 14th amendment

(July 28, 1868 abolished the slavery. Whereas 14th amendment (July 28, 1868)

declared blacks to be the citizens of US and said,

“No States shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the law.”

The 15th amendment (March 30, 1870) gave voting rights to Blacks declaring that,

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“The right of citizens of the United States to vote shall not be

denied or abridged by the United States or by any State on

account of race, colour, or previous condition of servitude.”

Despite such amendments and passage of 5 major civil right bills in 1860

and 1870s, in reality, there was neither an end of slavery nor the beginning of

equality. The Blacks continued to be the victims of oppression in the form of

segregation, making the beginning of an era of segregation. The reach of

segregation was from the cradle to the grave. Blacks were segregated from whites

in schools, housing, sports, jails, hospitals, churches, jobs, business, even cemeteries

were segregated. Despite the Voting Rights Act, of 1965, blacks in the South did not

get the right to vote. Some of the Southern States passed laws that forced blacks t

ride in separates railroads cars.

The US Supreme Court further strengthened the issue of segregation in the

case of Plessey V. Ferguson (1896) by declaring Louisiana discriminatory law

valid ‘keeping with the mood of the country’. While justifying the segregation law in

railroad cars, the Court invented the doctrine of separate-but-equal practice.

Justice Harlan alone, who wrote his own strongly worded dissenting opinion, held

the view that,

“The Constitution does not give separate rights to citizens of

white and black skin. He thundered, “Our Constitution is colour

blind.”

The doctrine of separate-but-equal, unfortunately ruled for a long time in

US Supreme Court till it was set aside in Brown V. Board of Education in 1954. In

between, as a Part of national reconstruction, from 1876, the US Supreme Court

applied the 14th amendment reiterating the state-action theory. However, in the

Civil Rights cases of 1883, it struck down the Civil Rights Act, 1875, because it was

against the private discrimination not amounting to state action. In 1880, in Ex

Parte Virginia, court declared the action of a State judge in excluding blacks from

a jury service a violation of the Civil Rights Act, 1875. In 1915, the US Supreme

Court in Guinn V. United States struck down “grandfather laws” which

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disenfranchised Negroes by extending the franchise only to those whose ancestors

had the right to vote in 1866. In 1917, in Buchanan V. Warley 1 the court declared

unconstitutional municipal ordinances prohibiting blacks from moving into white

neighbourhood.

In the post first and second world wars scenario, US socio-economic,

political and legal order changed dramatically. During wartime, there was an

increasing demand for black workers, which resulted into breakdown of some of

the barriers to the entry of Negroes into industry and trade unions. In the presence

of huge army of deprived Negroes, morally it became difficult for Americans to

condemn Nazi racism. In the backdrop, President Roosevelt threatened a mass

march of Negroes in Washington. In June 1941, US established a Fair Employment

Practices Commission and prohibited discrimination by race in defence, industries

and the government and later on it expanded to the employment of blacks in the

federal bureaucracy. With the adoption of UN charter on Human Rights in 1945,

the civil rights struggle or the struggle for equality of blacks reached to the

mainstream political arena. In Shelley V. Kraemer (1948), the court in a

unanimous five-justice opinion ruled that judicial enforcement of restrictive racial

covenants constituted State action and hence violated the 14th amendment.

In the field of education the legal journey towards the desegregation era

began in 1948-50.2 But in 1954, US Supreme Court completely reverted the doctrine

of ‘separate but equal’ in its celebrated decision Brown V. Board of Education

(1954).3 On May 17, 1954 in a landmark decision, Chief Justice Earl Warren held,

“In approaching this problem, we cannot turn the clock back to

1896 when Plessey V. Ferguson was written…. Today, education

is the very foundation of good citizenship …. in the field of public

education the doctrine of ‘separate but equal’ has no place.

Separate educational facilities are inherently unequal.”

1 245 U.S.60 (1917). In this Court addressed Civil Government Instituted racial segregation in residential areas. 2 Sipuel V. Board of Regents (1948), Sweatt V. Painter (1950),McLaurin V. Okalahoma State Regents(1950). 3 For a black girl, Linda Brown, the case was argued by the leader of the black, Mr. Thurgood Marshall who later on became the first Agrican-American Justice of the US Supreme Court and served from 1967 to 1992.

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In Brown (II) case in 1955, on similar facts the Supreme Court affirmed its

earlier view. As a result of this decision the work of integrating the public education

began. While these decisions did not solve the US racial problem, they helped to

change the course of history. It proved the legal foundation to the civil rights

movement of blacks and a series of marches led by Martin Luther King Jr., as well as

passing of the Civil Rights Act 1964 and the Voting Rights of 1965, which helped

Negroes living in the south to secure the right to vote. At present there is Civil

Rights Act of 1991.1

However, the issue of affirmative action in education turned into reverse

discrimination in famous Bakke’s2 case 12 in 1978. In the 1970s, while campuses

were embroiled in debate about how to increase blacks and women on the faculty,

universities were also putting into effect schemes to increase minority presence

within the student body. The Medical School of the University of California at Davis

reserved 16 of the 100 slots in its entering classes for minorities. In 1973 and again

in 1974, Allan Bakke, a white applicant, was denied admission although his test

scores and grades were better than most or all of those admitted through the

special programme. He sued. This was the first case invoking the Equal Protection

Clause of the Constitution by a Whiteman. Until then, in all the cases before the

Supreme Court, the blacks invoked the protection of Equal Protection Clause.

The University of California at Davis in its justification contended before the

court that its policy was aimed with the four purposes.3

1. Reduce the historic deficit of traditionally disfavoured minorities in medical

schools and in the medical profession;

2. To counter the effects of social discrimination;

3. To increase the number of physicians who will practice in communities

currently under served.

1 This Act was an outcome of a series of US Supreme Court decisions represented the first effort since the passage of the Civil Rights Act of 1964. 2 . Regents of the University of California V. Bakke, 1978. 3 Research Paper by Kevin Brown, Professor of Law, Indiana University School of Law, “Diversity and the African-American Experience in America with racial Subordination in the United States” at the National Seminar on Diversity and Affirmative Action in the Era of Privatization organized by Bangalore Law school on April 19-20, 2003.

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4. Obtain the educational benefits that flow from an ethnically diverse student

body.

While deciding the case, eight justices were split into two groups of four

each and Justice Powell held the controlling opinion. Justice Brennan for one group

of judges held the view that equal protection clause was to protect the rights of

discrete set insular minority groups, where as justice Stevens for other set of judges

prohibited college and universities from considering the race of its applicants in the

admissions process. But Powell did not agree with their view of constitution. He

argued that the Medical school’s policy was unconstitutional and voted that Bakke

must be admitted. He vote, added to the four votes of the Stevens group, meant that

Allan Bakke won his case and that Powell got to write the opinion of the court of

the Court Justice Powell declared,

“The Constitution can tolerate no ‘two-class’ theory of equal

protection. There is no principled basis for deciding between

clauses that deserve special judicial attention and those that

don’t. To think otherwise would involve the Court in making all

kinds of “political” decisions it is not competent to make. In

expounding the Constitution, the Court’s role is to discern

“principle sufficiently absolute to give them roots throughout

the community and continuity over significant periods of time,

and to lift them above the pragmatic political judgments of a

particular time and place.”

Despite of such a decision, in 1979, in the case of United Steel workers of

America V. Weber, the Supreme Court took race-conscious affirmative action by

approving a preferential employment plan in private industry.1

Although, in Bakke’s case the Supreme Court upheld the legality of affirmative

action per se, it outlawed inflexible quota system unfairly disseminating against a

white applicant. This decision of the US Supreme Court’s has resemblance with

1 In this case, the US Supreme Court held that an employer could grant preferential treatment to racial minorities under a private, voluntary affirmative action programme.

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Indian Supreme Court’s decision in State of Madras V. Champakam Doorairajan1

wherein the Apex Court struck down the communal quota policy of Madras State as

violative of Article 14 and 29(2) pf the Constitution. For not furthering the

constitutional agenda of equality the decision received the sharp reaction from

professor P.K. Tripathi, who went to observe that,

“Our vision of Justice continues to pamper the Zamindars and our principle of equality operates in favour of the tyrant ‘Brahmin’ who holds the monopoly of State employment in the South.”.2

Bakke decision’s ratio could also be found in Indra Sawhney3 case where the

Indian Supreme Court on the one hand upheld employment quota for OBCs in

government jobs but curtailed the scope of reservation policy by declaring that “it

should not exceed 50% and also ruled that economic criterion cannot be an

exclusive method for identification of a backward class.

The decision of Bakke was followed by City of Richmond V. Croson, in

1989, in which for the first time the court adopted Powell is reasoning that equal

protection clause does not mean one thing to disadvantaged racial and ethnic

minorities and another to whites. Since then there were several conflicting

decisions on affirmative action.

However, initially, in USA, the programme of affirmative action was for

blacks only but now it applies to other groups such as ethnic minorities, women and

disables. Along with Blacks or Afro-Americans, Asian-Americans, Pacific-islanders,

Native-Americans and non-ethnic minority women are also beneficiaries of it. The

large number of Indians in US have also benefited from it being an ethnic minority.

Naturally, Indian-Americans are also enjoying the fruits of Civil Rights Movement

of US without fighting for it. However, the same NRIS, in India are in opposition to

the entry of SCs, STs in the private sector in the name of ‘meritocracy’.

1 AIR 1951 SC 226 2 Tripathi P. K., “Spotlight on Constitutional Interpretation”, p. 291, N. M. Tripathi Pvt. Ltd. Mumbai; 1972. 3 AIR 1993 SC 477.

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In USA, leading universities, such as, Stanford, Harvard and yale, as well as

big industrial names, such as, Intel Microsoft, United Airlines, Proctor and Gamble

and many others support the affirmative action programme. The Negro yearbook

published in 1931 provides and example of funding by whites to the cause of

education of Blacks. According to the book, Garrotson released 5 lakh dollars,

Harkness 12.5 lakh dollars, Tatt 1,60,600 dollars, religious and humanitarian

institutions spent 13.5 crore dollars between 1865 to 1930. However, in India the

‘Dronacharya Mindset’ of industry and upper caste mechanism is unable to learn a

lesson from USA.

“Those who talk of competing on a world scale rarely look at

the role affirmative action programmes have played in not only

democratizing American society but also diversifying and

energizing its industry. Indian businessmen would do well by

learning more from their presumed model, the dynamic

American industrial sector.” 1

American businessmen strategically have increasingly recognized the

principle of diversity to enhance their competitiveness but Indian businessmen

continue to have the age-old privileged mindset’ in the fast changing globalize

world.

However, in India, to extend the arm of affirmation action to the private

sector, the Report of the National Commission to Review the working of the

Constitution strongly recommended that,

“It should be mandatorily stipulated in the Memoranda of

Understanding (M.O.Us.) of privatization or dis-investment of

public sector undertaking that the policy of reservation in

favour of SCs STs and BCs shall be continued even after

privatization or dis-investment in the same form as it exists in

1 Gail Omvedt, ‘Dronocharya Mindset-Private Sector Quotas To Improve Efficiency’. Times of India, September 3, 2004, Mumbai.

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the government and this should also be incorporated in the

respective statutes of reservation.” 1

In the year 2004, for the first time in the official document, the Planning

Commission’s sub-group on Scheduled Tribes, headed by the secretary, Tribal

Ministry, strongly recommended reservation in the private sector as well as the

need to award a share of outsourcing jobs to dalits and tribals. Based on the

American model the report suggested that 7.5% share to STs may be considered in

respect of awarding tenders from the government and PSUs like railway supply,

defence canteens etc. The report has also recommended that before granting

essential facilities like electricity and water connections and bank loans to the

private sector, the government should take an undertaking that they would follow

the reservation polity of the State.

In pursuance of the above stated recommendations, the Government of

India, in the year 2004 formed the Group of ministers on affirmative action “to

examine the issue of affirmative action including reservations, in the private

sector.” To that industrialist Rahul Bajaj promptly responded ‘that industry will be

happy to discuss affirmative action but, quite frankly excluding reservations as it

will kill Indian private sector’.2 The prime argument of Mr. Bajaj was that,

“The private sector cannot afford to have a culture of

entitlements, of receiving something for nothing. Entitlements

are a cancer that can only destroy the productive capacity of an

entity-more so, in today’s globalizing world.”

In the write up, Mr. Bajaj advanced illogical arguments including the fear

of arrest and no bail under the SCs and STs were inducted in private sector. This

was reiterated in the report of Confederation of Indian Industry (CII) on ‘Proposed

Concrete Steps by Indian Industry on Affirmative Action for SCs/STs’, which was

submitted to the Prime Minister of India on July 28, 2006. The report, although

1 Supra 6, Pp. 196-197. 2 Rahul Bajaj, ‘Devoid of Merit’, The Times of India, September 21, 2004, Mumbai.

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promised to undertake several upliftment measures for SCs and STs, it has opposed

any legislation to that effect stating that ‘no’ because it would be counter

productive. This also reveals the misconception of affirmative action programme

among the leaders of Indian industry. Due to the opposition from the private sector

and government’s unwillingness to pursue the agenda of affirmative action in

private sector by antagonizing the capitalists-industrial lobbies the issue has been

in the cold storage.

However, Prime Minister Manmohan Singh, on May 24, 2007 at the annual

general meeting of CII, at Delhi warned the industry to develop a “social charter”.

In a passionate speech he said,

“Corporate social responsibility must not be defined by tax

planning strategies alone. Rather, it should be defined within

the framework of a corporate philosophy which factors the

needs of the community and the regions in which the corporate

entity functions.”

The Prime Minister further said,

“The industry must be more proactive in recruiting workers

from underprivileged backgrounds and should guard against

attempts to subvert competition. Workers must feel they are

cared for at work otherwise India can never evolve a national

consensus in favour of more flexible labour laws aimed at

ensuring that our firms remain globally competitive.”

In the speech, the Prime Minister suggested ten-point charter for industry, which

included:

1. Broaden the definition of Corporate Social Responsibility 2. Be proactive in offering jobs to the less privileged 3. Restrain hefty pay packages for senior executives 4. Invest in skill development by offering scholarships 5. Stop forming cartels, anti-competitive practices 6. Give pension and provident fund benefit to workers

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7. Invest in environmentally friendly technologies 8. Promote enterprise and innovation 9. Fight corruption 10. Promote socially responsible media.

The Prime Minister by his reminder to the Corporate Sector informed about

the self-imposed corporate code of conduct. However, it was certainly not an

innovative idea. The first corporate code of conduct was created by the

International Chamber of Commerce (ICC) in 1949. Thereafter, over the years,

there has been a plethora of codes of conduct governing corporate sector, such as

OECD Guidelines on Multinational corporations, International Labour

Organisations Tripartite Declaration of Principles Concerning Multinational

Enterprises and Social policy, UNICEF’s code of Marketing Breast Milk substitutes,

etc. But these corporate codes are purely voluntary, non-binding instrument and

hence no corporation can be held legally accountable for violating them.

To oppose the agenda of reservations in private sector there has been a hue

and cry about the so called ‘merit’ by the upper caste people. Unfortunately, the

same viewpoint was also reflected in some of the judgments of the Supreme Court

of India.1 But the fact is the other way. So far, entire affair of India has been decided

as well as conducted by the policies the world knows better about the nation’s

growth in several sectors. The word ‘merit’ has been very cunningly used to

frustrate the programme of reservation policy, the prime device of constitutional

affirmative actions. Therefore, in ABSK Sangh case (1981), Justice Krinha Iyer

rightly said,

“…Trite arguments about efficiency are a trifle phoney…We

are not impressed with the misfortune manned by morons,

merely because a sprinkling of Harijans and Girijans happened

to find their way into the service. The malady of modern India

lies elsewhere and the merit mongers are greater risks in many

respects than the native tribals, and the slightly better off lower

castes.”

1 Dr. Preeti Srivaswtva & Anr. V. State of M.P. & Others (JT-1999(5) SC P. 498)

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The scholar late A. N. Das has also observed that.

“The protection of merit is a manipulative plutocracy of the

privileged. Such is the moral and intellectual degeneration of

the Indian elite that it feels insecure when reservations

threaten this privilege. It raises the bogey of merit being

swamped by the multitude because it is not sure of its own

competence.” 1

The way in which the highest courts in both the States have reached to the

affirmative action programme is one of the vital aspects of AAP. Like the US

Supreme Court2. Indian Supreme Court3 too have had adopted a zigzag approach

over the issue of affirmative action of reservation system. From Champakam

Doorairajan’s case in 1951, to P. A. Inamdar in 2005 and Ashok Kumar’s case in

2007 (OBCs reservation quota in higher educational institutions)4, the Apex Court

has shown divergent judicial trend over the affirmative action for SCs STs and

OBCs.

The Supreme Court has declared, ‘social justice society is basic to our

constitutional order’,5 but in few cases6 on the grounds of “seniority” , “efficiency”

the court has obstructed the constitutional policy of affirmative action which has

resulted into first constitution Amendment Act, 1951, inserting Article 15(4) 77th

Constitution Amendment Act, 1995, inserting Article 16(4-A), 85th Constitution

Amendment Act, 2000, inserting Article 16(4-B), and 93rd Constitution Amendment

Act, 2006, adding clause 5 to Article 15 of the Constitution.

1 Das A. N., The Times of India, Sept. 5, 1990. 2 Regents of the University of California V Bakke (1978), Hopwood V. Texas (1996), Grutter V. Regents of the University of Michigan (2003). 3 Champakam Doorairajan (1951), Mandal Decision (1993), Dr.Preeti Srivastav(1999), TMA Pai Foundation (2003), P.A. Inamdar (2005). 4 www. Supreme Court case Law. Com 2007 SCCL Com 349. 5 Bhim Singh V. Union of India, AIR 1991 SC 234. 6 Balaji V. State of Mysore (AIR 1963 SC 649), Chitralekha V. State of Mysore (AIR 1964 SC 1823), Triliki Nath V. State of J. K. (AIR 1969 SC 1), Jaysharee V. State of Kerala (AIR 1976 SC2381), Indra Swaney V. Union of India (AIR 1993 SC 477).

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For such an act of judicial inconsistency, the criterion to become eligible for

AAP has been the major factor. In United States, it has been very easy to apply the

race criterion, but in India, the criterion of caste to be eligible for affirmative

actions has been the subject matter of debate over the years. From the case of

Balaji in 1964 to Mandal decision1, the Supreme Court has given diverse opinions

over the issue to caste, but has never excluded the caste criterion. In K. C. Vasant

Kumar V. State of Karnataka2, the caste-backwardness nexus was elaborately

discussed by the court. Justice D. A. Desai although opposed making caste the basis

for recognizing the backwardness, Justice O. Chinnapa Reddy opined that, “social

hierarchy and economic position exhibit an indisputable mutuality. The lower the

caste, the poorer its members.” In the landmark decision of Mandl (1993), also the

court could not completely isolate the caste factor and also held that ‘economic

criterion cannot be an exclusive method for identification of a backward class’. As a

consequence, consistently, caste has been the dominating factor for determining

backwardness. In Mandal decision although majority held that ‘identification of

backward classes can certainly be done with reference to castes among, and along

with, other occupational groups, classes and sections of people’, Justice Kuldip

Singh in his dissent held that caste poses a serious threat to the secularism and as a

consequence to the integrity of the country and hence cannot be adopted as

collectivities for the purpose of identifying “backward class” under Article 16(4)

On the issue of affirmative action, both the Apex Courts, Indian and US, in

their landmark decisions3, differed fundamentally in their approach. In P. A.

Inamdar V. State of Maharashtra4 the Apex Court of India ruled negatively on the

issue of reservation policy and gave a death blow to the constitutional policy of

affirmative action. The court’s logic in providing NRI quota and refusal to have any

kind of quota for disadvantaged sections was not only inconsistent with

constitutional-judicial trend but it was also injudicious. By upholding the interest of

the private sector and neglecting the interest of the disadvantaged sections, the

1 AIR 1993 SC 477. 2 AIR 1985 SC 1495. 3 US Supreme Court in 2003 in the case of University of Michigan and Indian Supreme Court in P.A. Inamdar case in 2005. 4 2005 AIR SCW 3923. As far as the reservation policy is concerned the decision was overruled by the Constitutional Amendment Act, 2006.

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court has made its own contribution to the policy of liberalization and

privatization. The court’s unfortunate presumption that reserve category students

were “less meritorious” and private colleges provide “better professional

education” was not founded on the well reasoned decision of the court when the

‘merit’, ‘efficiency’ are not hereditary the most fatal blow was also given by the

court’s reasoning that,

“Merely because resources of the State in providing

professional education are limited, private educational

institutions, which intend to provide better professional

education, cannot be forced by the State to make admissions

available on the basis of reservation policy to less meritorious

candidate. Unaided institutions, as they are not deriving any

aid from State funds, can have their own admissions if fair,

transparent, non-exploitative and based on merit.”

But in a landmark case, the University of Michigan,1 the Us Supreme Court

by the majority of five to four upheld the University of Michigan Law School’s

policy, ruling that race can be one of many factors considered by colleges when

selecting their students it furthers “a compelling interest in obtaining the

educational benefits that flow from a diverse student body.” Although the Supreme

Court did not emphasize much on the redressing on the past oppression and

injustice, it upheld that policy in the name of “compelling state interest” and

diversity. Thus, both the Apex courts differed fundamentally in their judicious

approach, US court firmly stood for the affirmative action but Indian court got

attracted by the slogans of liberalization, globalization and privatization.

However, on 31st January, 2007 the Supreme Court of India decided on the

constitutionality of the 93rd Constitution Amendment Act, 2006 allowing the

government to create special provisions for socially and educationally backward

classes, SCs or STs for admission into aided and unaided private educational

1 Grutter V. Regents of the University of Michigan, decided by the Sixth Circuit Court in 2002 and by the US Supreme Court in 2003.

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institutions, in a major shift in its judicial thinking allowed the 22% quota for SCs

and STS from 2007-2008 by rejecting the tag of “merit only.” But on March 29,

2007 in another milestone case, Ashok Kumar Thakur V. Union of India,1 the

constitution bench comprising of Justice Dr. Arijit Pasayar and Justice L. S. Panta

hearing a bunch of petitions on the constitutionality of The Central Educational

Institutions (Reservations in Admission) Act, 2006 providing 27% quota for OBCs in

central educational institutions, that is IITs, IIMs, AIIMS, etc from 2007-2008

stayed the governmental move on the ground that it calls for more reliable data

but does not strike down the caste based reservation policy or quota system for

OBCs in higher educational institutions. The operation of the OBC quota in the

institutions of higher education was stayed on two grounds. One, there could be a

sense of arbitrariness in fixing the 27% quota without latest demographic and

socio-economic data of OBCs, although the National Sample Survey Organisation

(NSSO) after the 55th Round (1999-2000) in its data has provided information on

OBCs stating that it was 35%. Second, the Act by the non-exclusion of the creamy

layers as laid down in first Mandal case in 1993. For the application of reservation

quota, since the evolution of the test of ‘creamy layers’ in Mandal case, the court

has consistently harped upon it but have not bothered to introduce it in the

remaining open 50% opportunities, although there also some of the castes and

social groups have established their absolute monopoly. In a final effect, by the

decision, the centres of higher education, such as elite institutions that is IIMs, IITs,

remained ‘elitist’ centres of learning.

The percentage of OBC’s population in the country has been one of the

major topics of the debate in legal as well as political corridors. However, on 31st

August, 2007 the Government of India released a survey which indicated that

backward castes form about 41% of the populace. A survey by the National Sample

Survey Organization stated OBCs population in the country at 40.94%, the SC at

19.59%, ST at 8.63% and the rest at 30.80%. The 41% figure of OBCs was much

less, than the 52% stated by the Mandal Commission Report.

1 Ashok Kumar Thakur V. Union of India-2007 SCCL Com 355.

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In the instant case it was argued by the petitioner that, “The Act for 27%

OBC quotas will unleash a “social catastrophe”, divide the country on caste basis,

cause “anarchy”, “seriously affect social and communal harmony.” And its product

will be “intellectual pygmies as compared to normal intellectual sound students

presently passing out.” Despite such arguments, the court rightly did not oppose the

concept of OBC reservation, although it held that increasing seats for reservations

means treating unequal as equals. The remarkable feature of the decision is that

the bench referred and to a certain extent relied upon two leading decisions of the

American Supreme Court of 2003.1 Referring those decisions, Justice Dr. Arijit

Pasayat urged the policy makers to have a serious look at how other diverse

constitutional democracies like the United States and South Africa, in which certain

groups were subjected to discrimination in the past, have addressed the

fundamental challenge of equality.

In conclusion, it is far to observe that, historically the African-Americans

struggle for civil rights or against racial discrimination and dominance of whites

could be grouped into four categories, namely, one Slavery Era (1620-1865), two

Segregation Era (1865-1954), third Desegregation Era (1954-1978) and fourth

Diversity Era (1978 to present). In US, now the principle of affirmative action or

principle of diversity is applied in manifold matters, such as, in the field of

education, employment, housing, transportation, governmental contracts, etc., that

is, not only in State action but in private sector too.

In India, apart from the lack of adequate political and administrative will to

implement the programme of affirmative actions, the very scope of programme has

been limited to only the State actions leaving the vast field of the country in the

hands of private sectors. This is a fundamental difference between the affirmative

action programme in US and India. In India so far it is confined to State affairs only

whereas in USA it is being applied even to the private sector. In USA, The Civil

Rights Act of 1964 provides for two powerful authorities to ensure proper

implementation of the Affirmative Action Programme. Under the Act, the Equal

Employment Opportunity Commission (EEOC), with five members is responsible for

1 Grutter V. Bollinger (2003) and Gratz V. Bollinger (2003).

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implementation of US policy to provide equal opportunity in federal employment.

The EEOC has jurisdiction over private employers also. The Office of Federal

Contract Compliance Programme (OFCCP) is an authority to look after the

activities of the federal contractors and sub-contractors in relation to equal

employment opportunity. But in India, the Indian Parliament and Parliamentarians

have not even time to debate and discuss over the reports submitted by the SC or ST

commissions, considering them merely as a toothless bodies.

In 1995, the affirmative action programme in US received a strong criticism

for reverse discrimination. The Governor of California Mr. Pate Wilson had issued

an executive order eliminating some of the affirmative actions. The then US

president Mr. Clinton had shown the readiness to review and reform the

programme. But after Alfred Blumrosen’s report showing that reverse

discrimination was extremely rare, President Clinton too strongly rejected the

proposals to limit the affirmative action programme to women and minorities.1

Affirmative action, in US, is currently perceived as a means of overcoming the

structural exclusion of blacks from major institutions. It assists structural

integration of blacks, and structural integration serves the ideal of equal

opportunity.

That does not mean that in USA everything is well with the Affirmative

Action Programme. Despite the policy programme white Americans continue to

dominate the blacks in every walk of national life.

“Forty percent of all adult Black males are functionally

illiterate. More Black men between the ages of 15 and 44 are in

jail or on probation than in college. Homicide is the leading

cause of death among Black males 15 to 44 years of age. Their

official unemployment rate of 12.6% exceeds the 6.8% jobless

rate for the nation and the 10.9% rate for Black women.”2

1 For detail discussions see-Ram Samujh, ‘Reservation Policy-Its Relevance in Modern India’, Pp. 197-230, Samrudh Bhart Publications, Mumbai, 2005. 2 Gerald Horne, ‘Reversing Discrimination-The Case for Affirmative Action ‘.P. 39, International Publishers, New York, 1992.

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This scenario has been exactly the same as India where so called upper

castes continue to dominate in every walk of life despite the reservation policy in

the fields of education, jobs and political decision making processes.1

It has been no matter of doubt that there has been the fundamental

difference between the oppression level that of African-Americans in US and SCs,

Sts in India. Still affirmative action programmes in both the countries needs to be

compared in its canvass, multitudes and effectiveness. Both the democracies

represent different models of correction for the historical social imbalance. Also,

one need to understand the experiment of affirmative action programmes in

entirely different economic set-ups, when America represents the fully

industrialized capitalist urban society and India with developing economy huge

rural population marching towards the capitalist culture in the era of globalization

and privatization. But having compared with India’s reservation policy, USA has

done well on this front, although their policy took the final shape in 1965.

In India, to oppose the affirmative actions, including the reservation policy,

the affluent class, castes, bureaucracy and private sector has been playing the role

of Ku Klan Klux of American model.2 The best example of such mentality has been

well explained by the Karia Munda Parliamentary Committee Report on the

Welfare of SCs and STs, 1999-2000.3

How such anti-constitutional class should be made to submit to the

constitutional discipline is one of the challenges before India. It calls for strong and

determinative political will, which most of the governments do not posses. At the

same time, in the national interest, the private sector should also understand the

need of the development of vast human resource in India. They fail to understand

1 . The best illustration of non-implementation of reservation policy is the central universities which have been directly under the Human Resource Development Ministry, Govt. of India. The statistics are: Delhi University total vacancies for SC/ST 82, filled nil, Viswa Bhariti total 221, filled only 15, pondichery total 34, filled only 2, Ignou total 51, filled only 2 and BHU total 156, filled 85. See- Times of India, Sept. 4, 2006, Mumbai. 2 See “Dalit IIM grads are paid less”, news item in Times of India, Sept. 12, 2006, Mumbai and “Report sought on casteism at AIMS”, news item in Times of India, October 2, 2006, Mumbai and burning of Dr. Ambedkar’s books by AIIMS forward caste students to oppose the reservation for OBCs in Sept. 2006. In USA, KU Klan Klux was the group of whitemen opposing the right of Blacks and shooting them. 3 . Karia Munda Parliamentary Committee Report on the Welfare of SCs and STs (1999-2000), P. 14, Lok Sabha Secretariat, New Delhi, 2000.

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the basic that India cannot compete in the modern global competitive world by

leaving the vast of Indian manpower away from development process. In the

interest of national development it is better hat, they should not merely copy down

the competitive-market profit mentality of Americans but should also learn the

application of the principle of AAP and diversity in national endeavours.

The Affirmative Action Programme has been now a part of the

constitutional structure, both in America as well as in India. However, in the recent

past some significant changes have been taken place. In USA, the racial diversity,

which has been the prime instrument of school integration programme for a long

time is under threat because of the judgment of the American Supreme Court. In

the month of June, 2007 in a milestone decision the American Apex Court ruled that

voluntary school integration plans in Louisville and Seattle that used race as a

factor in school assignments were unconstitutional.1 Without any ambiguity, the

court’s new conservative majority held that taking race into account to integrate a

school is just as bad as using race to segregate one. The decision has in-fact

reopened the historical decision of the Court in 1954, Brown V. Board of Education

and to a certain extent has reversed the ideals of Brown decision. In Brown’s

decision, the court has ruled that,

“Integration was central and critical to open and high quality

education for all and outlawed racial segregation in public

schools leading to some times divisive efforts at many schools,

including busing kids from black schools to white schools and

vice versa.”

But due to recent decision of the US Apex Court now it is believed that it will

affect not only the schools integration programme but also governmental efforts

towards equality

1 Sec. Parents Involved in Community Schools V. Seattle School District No. 1 (551 U.S. 701 (2007). In this case, the US Supreme Court ruled that two districts with voluntary integration plans could not use race in assigning students to public schools. A court majority said that racial diversity depending on its meaning and definition is a compelling educational goal. Further Justice Kennedy stated that schools may use race-conscious alternatives to achieve racial diversity without discrimination.

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In India, the issue of providing job reservations to SCs, STs, Minorities and

Other Weaker Sections in private sector took a new turn in August 2007. Despite

the UPA government’s several proclamations that it stood for it and promise to

make all endeavors to secure it, on 16th August, 2007 Minister of State for Social

Justice and Empowerment Mr. S. Jagadeesan told the Lok-Sabha that, ‘the

government has no proposal to bring a legislation for quotas in the private sector’.

But on the other hand, Miss Mayawati, the then Chief Minister of Uttar

Pradesh and BSP supremo, in August, 2007 in a novel way quietly introduced the

30% quota in private sector. On 10th August 2007, the Uttar Pradesh State cabinet

under the leadership of Miss Mayawati decided that the corporate setting up new

projects in selected sectors may go for voluntary job reservation of 30% if they wish

to avail of tax concessions for new projects. The decision stated that the industrial

units, infrastructure projects, educational institutes, service sector projects and

disinvested units, which are set up with fiscal incentives, will have to provide 30%

job reservation, which includes 10% for SC, 10% for backward castes and

backward religious minorities and 10 for the economically weaker sections from

upper castes The decision also stated that the scheme will be implemented through

an agreement between the private sector unit and the government of Uttar

Pradesh in lieu of various benefits and reliefs being offered with the periodical

assessment of performance. This move of Miss Mayawati government in Uttar

Pradesh has been the trendsetting decision on job quota in private sector without

any specific legislative enactment. This has also opened a new horizon to have a

pragmatic method to implement the quota in private sector, which will go long way

in shaping the affirmative action programme in India. But in April 2012 the newly

elected government of Samajwadi Party has reversed the wheel by cancelling

progressive and trendsetting decision of earlier BSP government in Uttar Pradesh.

Since the first Mandal Judgment (1993), ‘the quota should not exceed 50%

rule, for a long time has ruled the province of reservation policy. However for the

first time on 30th August 2007 the Supreme Court of India, in its verdict in Mahesh

Gupta and others V. Yashwant Kumar Ahirwar (2007 SCCL Cp, 907) breached its

own long standing rule of 50% cap on reservations mandated by it does not cover

the 3% quota in force for the disabled as well as the one that may be introduced for

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women.’ In future, this decision will have far reaching effects over the issue of

quantum of quota under policy.

In comparison to the US, India started much before the US, the preferential

policy through the system of reservations but she has been behind in actions and

achievements than the USA, In the matter of implementation of reservation policy,

the Indian Government in practice has, however, adopted the policy of running with

the hare and hunting with the hounds.1

<<<<<<<<<>>>>>>>>>>

1 Supra Note 38 at p. 5