Even before we start with the topic, the heading raises a fundamental question, “who are these backward castes and classes? Does Constitution even mention them?” The answer is really complex, especially of the first question. In India, for millennia an exploitative and exclusionary practice has been carried forward under the name of ‘Caste System’.
In the X Mandala (chapter) of Rig Veda, there is a section called ‘Purush-Sukta’. This ‘Purush-Sukta’ gives us the concept of four caste groups, these are (1) Brahmin, (2) Kshatriya, (3) Vaishya, (4) Shudra. It also says, that these four caste groups have their origin from four different body-parts of the ‘Param-Brahma’ (Almighty). Based on the position and significance of the body-parts, the position of these different caste categories, in the society, are defined.
However, there is a fifth caste group, not mentioned in ‘Purush-Sukta’. Since this group is not mentioned in the holy text, hence it is conceived by the social elders that they do not originate from the ‘Param-Brahma’ (Almighty). Hence, in the eyes of the society, they are even lower than the previously conceived lowest order or Shudras. They are called Ati-Shudra or Namah-Shudra, in different parts of India. And were treated as untouchable.
The perceived notion, imposed number of restrictions on these people. Though, their treatment differed from region to region. But one thing was common to every region, that is, their complete exclusion from the society at large, resulting into exploitation to an extreme level. Things were so bad, that at places, they were not allowed to enter the villages during 6 am to 4 pm, that is till the Sun was above head, so that not only these people, by accident, touches others, but their shadows should not touch others by chance. They were not even allowed to speak at a higher pitch since even their words were perceived to be polluting to the upper castes. And given the before mentioned description, it is better to forget about the right of these people to enter the temple complexes, especially the sanctum-sanctorum.
In Kerala, things in fact were taken to a new low, where, it was believed that women of lower castes should keep their breasts un-covered to pay homage to the upper-castes. In the State of Travancore, women of lower castes had to pay a tax, ‘Molakkaram’, if they wanted to cover their breasts.
Given, the exclusion and exploitation of millennia, which this section faced, the framers of the constitution of India, especially Dr. B. R. Ambedkar was of the opinion to provide certain basic safe-guards to this section, keeping in mind the philosophy of equity, as was highlighted by the Preamble of the Constitution. However, by Backward Castes, at this stage, only the untouchables (Ati-Shudra/Namah-Shudra) were referred to.
It is Article 366 of Indian Constitution, which provides the definition of any concept mentioned in the Constitution. Article 366(24), gives us the definition of Scheduled Castes. But effectively, it redirects us to Article 341. Article 341, in turn tells us that, whichever group, part of group or community of people, the President of India, after consultation with the Governors and concerned people, declares as Scheduled Caste, would become so. Why the word Scheduled Castes? Because of the list of or Schedule of such groups maintained and from time to time updated by National Scheduled Castes Commission (Article 338) as per the instruction of the President.
According to the Constitution of India, the provisions, which especially become meaningful in respect to the Scheduled Castes, are:-
Preamble – providing equal status to the people of schedules castes along with others and giving us a philosophy promoting the concept of equality among the equals.
Article 14 – giving us ‘equality before law’ and ‘equal protection of law’.
Article 15 – giving the right to people against any kind of discrimination based only on age, sex, place of birth, caste and creed.
Article 16 – talks of equal opportunity in respect to those created by the state.
Article 16(4) – creates the philosophical basis for positive discrimination. In principle, it says, since the constitution talks of equality among the equals, and the scheduled castes section, given the millennia of exclusion and exploitation, are in no position to compete with the rest. Hence, the government should create certain provisions for them ‘in addition’ to the original provisions.
Article 17 – abolishes untouchability
Article 18 – abolishes all those titles or prefixes which create differences among people, other than the academic of military titles.
Article 19(1) – provides number of freedoms starting from speech and expression to profession.
Article 21 – provides ‘right to life and personal liberty’, which post Maneka Gandhi Vs Union of India, 1978 and Aadhar Verdict 2017, is meant as ‘Right to life with dignity, which also includes privacy along with personal liberty’.
Article 44 – talks of Uniform Civil Code in public life, which would provide the scheduled castes an equal status in public life and would prevent any discrimination visibly, at least when people are in public space.
Article 243(D) – provides for reservation of seats in Panchayati Raj Institutions for the Scheduled Castes.
Article 243(T) – provides for reservation of seats in Local Urban Bodies for the Scheduled Caste Community.
Article 330 – provides for reservation of seats in Lok Sabha
Article 332 – provides for reservation of seats in State Legislative Assemblies
Article 334 – talks about the tenure of reservation. Post Ninety Fifth amendment, Article 334 secures reservation for Seventy Years of reservation. This has been a bone of contention, as after every ten years, this Article is amended by the parliament very silently.
Article 335 – provides for reservation in jobs for the Scheduled Caste Community.
However, in the aforementioned provisions, one can see, that provision for reservation in education is not included. Now, logically, providing reservation in jobs, without providing for reservation in education becomes meaningless. Even in Madras Presidency, when reservation as a tool was introduced in 1927, reservation both in education and in jobs were introduced simultaneously.
As a result, realising their mistake, the Government brought in a Constitutional Order of 1950, providing for reservation in education. By the way, it didn’t sustain. A person from Madras Province, Champakam Dorairajan, filed a petition in the Supreme Court stating that this Constitutional Order violates Article 15, the right against discrimination, as there is no protection provided to these types of special provisions in Article 15. The Supreme Court of India validated the stand of Champakam Dorairajan, and declared the Constitutional Order of 1950 as violative of the Constitution of India.
This resulted in the first amendment of the constitution, where by two separate items were included, (1) Article 15(4) providing “special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”, and (2) Schedule IX. Schedule IX was to provide protection to certain laws from judicial review, which were passed to ensure Land Reforms.
By the way, Article 15(4) gave rise to a new and unique controversy. For the first time, a new term was used talking about ‘Socially and Educationally Backward Classes’ (SEBC). The need was felt to define this term. Consequently in 1954, the Government of India formed a three member panel, the First Backward Classes Commission, also known after its chairperson Kaka Kalelkar, as Kaka Kalelkar Commission.
The First Backward Classes Commission gave its opinion in favour of using ‘caste’ as the basis to understand the term ‘Socially and Educationally Backward Classes’ or ‘Other Backward Classes’. But the report was accompanied by a letter written by its chairperson Kaka Kalelkar, in which Kaka Kalelkar wrote to the Prime Minister stating that though as the Chairperson he has signed on the report, but he belonged to the minority opinion, in his understanding, ‘caste’ cannot be the only basis to understand Backward Classes, other factors should also be looked into in details. As a result, the Government of India rejected the report of First Backward Classes Commission.
By the time in 1962 the verdict on an equally controversial case was given by the Supreme Court of India in M R Balaji Vs State of Mysore. The Case for the first time became an AIR in 1963 and has been subsequently quoted a number of times. In M R Balaji, the issue of determining backwardness arose, wherein the newly inserted Article 15(4) was examined by the Supreme Court. Under challenge here was a Governmental Order (GO) issue by the State of Mysore, wherein backward classes were identified exclusively on the basis of caste. The five-judge constitutional bench struck down this classification for several reasons- the chief of which was the Court’s interpretation of the words in Article 15(4) as being “classes of citizens”, and not “castes of citizens”. The test of caste was rejected for some other reason as well- first caste is inapplicable in many sections of Indian society which do not recognise the caste system such as Muslims and Christians; and second, the use of caste may be inappropriate if the end goal is to eradicate caste itself.
The Court in M R Balaji acknowledged that though caste plays a role in the social superiority and inferiority of people; however it cautioned against exaggerating the role of caste. Consequently, although caste may not be an entirely irrelevant consideration to determine whether a group is backward class of citizens, caste cannot be the only criteria. The use of caste as the sole or even paramount consideration in determining backwardness became impermissible.
In the M R Balaji case, the Mysore government had issued an order under Article 15(4) reserving seats in Medical and Engineering Colleges in the state up to 68% to the members of backward castes, more backward castes and scheduled castes and tribes. Only 32% seats were to be filled on merit basis. The court held that Article 15(4) enables the state to make special provisions but not exclusive provisions for the members of the backward classes. The state would not be justified in ignoring altogether advancement of the rest of the society in its zeal to promote the welfare of backward classes. The court held that national interests would suffer if qualified and competent students were excluded from admission in institutions of higher education. The court held that the special provision should be on the ‘minimum’ side of 50%. But how much less than 50% would depend upon the relevant prevailing circumstances of the case.
The issue to identify the “socially and educationally backward classes” was once again raised in 1977 by the Indian government led by Morarji Bhai Desai. The Second Backward Classes Commission was setup under the chairmanship of Bindheshwari Prasad Mandal, one of the former Chief Ministers of Bihar, on 1st of January 1979. The commission was mandated to identify the ‘Socially or Educationally backward castes in India’. The Commission submitted its report on 31st of December 1980.
The parameters set by the commission for identification of a backward caste/class was extremely diverse and holistic. These can be enumerated as:-
- Castes/classes considered as socially backward by others,
- Castes/classes which mainly depend on manual labour for their livelihood,
- Castes/classes where at least 25 per cent females and 10 per cent males above the state average get married at an age below 17 years in rural areas and at least 10 per cent females and 5 per cent males do so in urban areas.
- Castes/classes where participation of females in work is at least 2 per cent above the state average,
- Castes/classes where the number of children in the age group of 5–15 years who never attended school is at least 25 per cent above the state average.
- Castes/classes when the rate of student drop-out in the age group of 5-15 years is at least 25 per cent above the state average,
- Castes/classes amongst whom the proportion of matriculates is at least 25 per cent below the state average,
- Castes/classes where the average value of family assets is at least 25 per cent below the state average,
- Castes/classes where the number of families living in kuccha houses is at least 25 per cent above the state average,
- Castes/classes where the source of drinking water is beyond half a kilometre for more than 50 per cent of the households,
- Castes/classes where the number of households having taken consumption loans is at least 25 per cent above the’ state average.
However, to make the criteria of identification based on scientific principles and since the three categories of parameters didn’t represent equal weightage as perceived in Indian society, the commission adopted a weighted average method where the Social criteria were given 3 weightage points, the Educational criteria were given two weightage points and the third category of Economic parameters were given 1 weightage points. Based on this weighted points the commission prepared a scale ranging from 0 to 22 to identify the backwardness of a particular caste/class.
As per the findings of the commissions, nearly 54% population of the country, who belonged to 3,743 castes/communities etc. came under the definition of backward castes (with the exception of Scheduled Castes and Scheduled Tribes). Since caste wise population data was not available beyond 1931, the commission adopted the census data of 1931 after removing the factors which may have caused error in calculation and tried to identify the percentage instead of actual figure.
In the words of the commission “It may appear the upliftment of Other Backward Classes is part of the larger national problem of the removal of mass poverty. This is only partially correct. The deprivation of OBCs is a very special case of the larger national issue: here the basic question is that of social and educational backwardness and poverty is only a direct consequence of these two crippling caste-based handicaps. As these handicaps are embedded in our social structure, their removal will require far – reaching structural changes. No less important will be changes in the perception of the problems of OBCs by the ruling classes of the country.”
However, on submission of the report on 31st December 1980, the government of the day did not initiate any process of implementation. Finally, in 1990, the then Prime Minister of India Sri Vishwanath Pratap Singh initiated the process of implementation of the recommendations of the commission through two office memoranda. Even, on this occasion not all of the recommendations were considered for implementation but only the recommendation regarding reservation of seats in Government Jobs were implemented. The government announced that a reservation of 27% would be made for the other backward caste/classes/communities of the country.
The announcements saw a massive protest movement initiated by the students across the country. The movement took such fervent turn that even self immolation bids were also attempted by the students. First such attempt was done by Rajiv Goswami in Delhi. The move by the government was labelled by many as anti-merit and promoting the political motives of the government.
A writ petition was filed from the Bar Association of the Supreme Court challenging the validity of the office memoranda issued by the government. The case was decided by the 5 judge bench, which issued a stay order till the final disposal of the case on October 1990.
Meanwhile, the then Janata Government headed by Sri Vishwanath Pratap Singh at the centre collapsed. In 1991, the new Prime Minister Narasimha Rao government introduced two changes:
- Preference to the poorer sections among OBC in the 27% quota i.e. adoption of the economic criteria in granting reservation, and
- Reservation of another 10% of jobs for the poorer (economically backward ) sections of higher castes who are not covered by any existing schemes of reservation.
The 5-judges bench referred this matter to the 9-judges bench in who issued a notice to the government to show cause the criteria upon which the government has proposed to make 27% reservation for them. This case became famous as the Indra Sawhney & Others vs. Union of India.
In this case the court found that the Article 16(4) is not an exception to Article 16(1) but it only carves out a section of the society- the backward class of citizens for whom reservation in services may be formed. Clause (4) of Article 16 is not exhaustive of all the reservations in the services that may be kept. The reservation of posts in the services for the other sections of the society can be kept under Clause (1) of the Article.
The court further held that the backward class of citizens referred in the Article 16(4) is the socially backward class of citizens whose educational and economic backwardness is on account of their social backwardness. A caste by itself may constitute a class, however, in order to constitute a backward class the caste concerned may be socially backward and its educational and economic backwardness must be on account of its social backwardness. The economic criterion by itself cannot identify a class as backward unless the economic backwardness of the class is on account of its social backwardness. Hence the court made the observation that no reservation of posts can be kept in services under the State based exclusively on economic criterion either under Article 16(4) or under Article 16(1).
The court also found that reservations kept under Article 16(1) and 16(4) together should not exceed 50% of the appointments in a grade, cadre or service I any particular year. Only in extraordinary circumstances this percentage may be exceeded but it has to be justified on valid grounds. With this observation the court removed the ambiguity that was left open in the M R Balaji case. By a 6-3 majority the Supreme Court gave the following judgements:
- Backward class of citizen in Article 16(4) can be identified on the basis of the caste system and not only on the economic criterion.
- Article 16(4) is not an exception of Article 16(1). It is an instance of the classification. Reservation can be made under Article 16(1).
- Backward in Article 16(4) were not similar to as socially and educationally backward in Article 15(4).
- The advanced sections among the other backward classes(the creamy layer) should be excluded from the list of beneficiaries of reservation.
- Article 16(4) permits the classification of backward classes into backward and more backward classes.
- The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
- Reservation can be made through an ‘executive order’.
- No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotion can continue for 5 years only (upto 1997)
- A permanent statutory body should be established to examine complaints of over-inclusion and under inclusion in the list of OBCs.
- The carry forward rule in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.