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Home > 2010 Issues > October 17, 2010
Perspective
Disconnecting OBC from casteism is the Constitutional mandate
By Justice (Retd.) Dr M Rama Jois
It is essential that identification of OBCs must be totally
disconnected from castes in order to make the backward class
classification in terms of the Constitution. If this is done, census
on caste basis would become unnecessary in order to do justice to OBCs
in terms of the Constitutional position.
AT the outset it should be stated that it is indisputable that
reservation in favour of Other Backward Classes (OBCs for short)
namely other than Schedule Castes and Scheduled Tribes as permissible
under clause (4) of Article 15 in the matter of admission to
educational institutions and under clause (4) of Article 16 in the
matter of recruitment to civil posts under the Union and the State is
the policy of the Constitution of India. But the question is whether
the classification of backward classes has to be made on the basis of
caste or any rational basis other than caste or religion.
In connection with decennial population census, a few demanded that
there should be caste based census as they consider that backward
classes should and could be made only on the basis of caste. But, this
demand has become highly controversial on the ground that it is
unconstitutional as both Article 15 and 16 prohibit discrimination as
between citizens interalia on the ground of religion and caste. Those
who support caste based census does so in the belief or on the ground
that caste based census would be helpful and furnish a valid basis for
reservation of civil posts in favour of OBCs who are inadequately
represented in the State service as permissible under clause (4) of
Article 16 and in educational institutions as permissible under clause
(4) of Article 15 of the Constitution. Those who oppose does so on the
basis of the wording of clause (1) of Article 15 and clause (2) of
Article 16 which prohibit discrimination on the basis of caste.
Despite the opposition to caste based census within the UPA, and also
by a few others, the Union Government which was in a dilemma for some
time has ultimately yielded to the demand and decided to go ahead to
undertake caste based census.
This decision is highly divisive in nature and is sure to have far
reaching consequences on the unity and integrity of the people and on
the feeling of fraternity among the citizens as it encourages and
increases caste consciousness which has already inflicted sufficient
injury in the democratic process. Therefore, it has become absolutely
necessary to examine the object and purpose of such census and as to
whether caste based census is necessary to provide reservation in
favour of OBCs either under Article 15(4) or 16(4) of the Constitution
on the basis of caste?
The founding fathers of the Constitution who were statesman, and who
had an in-depth knowledge about the existence of disparity among
different classes of people in the country and who made charter of
equality as an element of the basic structure of the Constitution,
which cannot be altered even by a constitutional amendment, in their
wisdom felt convinced that as all citizens are not similarly situated,
in order to ensure equality, it is absolutely necessary to moderate
the disparity among different sections of citizens, by providing
reservation in employment under the State and in respect of various
other matters in particular in the matter of admission to educational
courses, which should be both qualitatively and quantitatively
reasonable so as to do justice to such classes of persons who are
unequally situated. Accordingly, the enabling power to provide
reservations were made in the following manner.
(A) in favour of Scheduled Castes and Tribe, as declared by President
of India, who undoubtedly belonged to backward class for historical
and sociological reasons,
(B) in favour of Other Backward Classes as identified by the State.
Thus, provisions of the Constitution is pragmatic and emphatic that
reservation on the basis of caste and tribe may be provided only in
favour of those included in the SC/ST list. But, as regards other
backward classes, they should be identified on any rational basis,
other than castes, as discrimination on the ground of caste is
prohibited by clause (1) of Article 15 and clause (2) of Article 16.
Despite such specific prohibition in Article 15(1) and 16(2), states
proceeded to make reservation only on the basis of castes.
Constitutional validity of backward classes made on the basis of caste
by the Mysore State came up for consideration before a Constitution
Bench of the Supreme Court as early as in 1963 in the case of MR
Balaji vs. State of Mysore, (AIR 1963 SC 649). The Supreme Court
considered its validity of both on qualitative as well as quantitative
basis and held as follows:-
(A) classification of backward classes cannot be made solely on the
basis of caste,
(B) reservation in the nature of things cannot exceed 50 per cent .
"We have considered both the orders in the light of the report and the
recommendations made by the Nagan Gowda Committee and we are satisfied
that the classification of the socially backward classes of citizens
made by the State proceeds on the consideration only of their cases
without regard to the other factors which are undoubtedly relevant. If
that be so, the social backwardness of the communities to whom the
impugned order applies has been determined in a manner which is not
permissible under Art. 15(4) and that itself would introduce an
infirmity which is fatal to the validity of the said classification.
(para-25)
"A special provision contemplated by Art. 15(4) like reservation of
posts and appointments contemplated by Art. 16(4) must be within
reasonable limits. .......... Speaking generally and in a broad way, a
special provision should be less than 50 per cent; how much less than
50 per cent would depend upon the relevant prevailing circumstances in
each case. (para-34)
This is the land mark judgment and an important milestone in our
constitutional history and has been reiterated after 30 years by a
constitution bench of nine judges in the case of Indra Sawhney [1992
Supp. (3) SCC 217] The Supreme Court has ruled in various judgments,
in view of Article 15(1) and 16(2) that backward classes cannot be
made only on the basis of caste. However, if in a given case most of
the persons belonging to any caste are found to be educationally and
socially backward, in such a case, name of that particular caste can
be used only for purpose of identification. Further, as even in castes
identified as backward class such of the persons who have become
forward should be excluded calling them 'creamy layer' who do not
really belong to backward class.
Now, it is a matter of common knowledge on account of various
economic, educational and social development programmes undertaken by
the Centre and the states including eleven five year plans and also
reservation provided under Articles 15(4) and 16(4), substantial
percentage of persons belonging to various castes are no longer
backward. Therefore, if the mandate of Article 15(4) and 16(4) should
be obeyed, backward classes have to be identified on rational basis
other than religion or castes.
In fact as early as in 1964, in Chitralekha's case [1964 (6) SCR 368]
the Supreme Court has observed as follows:
"What we intend to emphasize is that under no circumstances a "class"
can be equated to a "Caste", though the caste of an individual or a
group of individual may be considered along with other relevant
factors in putting him in a particular class. We would also like to
make it clear that if in a given situation caste is excluded in
ascertaining a class within the meaning of Art. 15(4) of the
Constitution, it does not vitiate the classification if it satisfied
other tests". (page-389)
In the case of Indra Sawhney the nine judge bench of the Supreme Court
which reiterated that the classification of OBCs cannot be made solely
on the basis of caste also considered the question as to whether the
backward class can be identified on the basis of occupation/income
without reference to the case and held as follows:-
"In Chitralekha this court held that such an identification is
permissible. We see no reason to differ with the said view in as much
as this is but another method to find socially backward classes.
Indeed, this test in the Indian context is broadly the same as the one
adopted by the Mandal Commission..." (para-800)
The principle laid down by the Supreme Court in its majority judgment
in Indra Sawhney's case clearly indicates that the identification of
backward class could be made on the basis of occupation which would
cover not merely Hindus who are divided into various castes but also
to minority religion such as Muslims and Christians. Having regard to
the clear indication flowing from the provisions of the Constitution
in Article 15(4) and 16(4) empowering reservation only in favour of
backward classes as distinct from castes, the only way of faithfully
implementing the provisions of the Constitution both having regard to
Article 15(4) and 16(4) read with 15(1) and 16(2) could be to identify
backward class on the basis of occupation such as (i) agriculturists,
(ii) agricultural labourers, (iii) occupation involving manual labour,
(iv) sweepers, (v) workmen as defined in Industrial Disputes Act and
persons doing manual labour in unorganised sector and so on. After
making such a classification as above, it is also necessary and
reasonable to prescribe income limit by providing that only those
persons among them whose family income is less than the minimum
prescribed be categorised as backward class. Such a classification on
the basis of occupation and income test would be inconformity with the
mandate of the Constitution.
The Hon'ble Supreme Court has also held in para-847 of the judgment in
Indra Sawhney case that there is necessity to constitute a permanent
statutory body to examine the correctness of classification made from
time to time. But unfortunately, it has not been done. Infact, Article
340 of the Constitution expressly provides for appointment of a
Commission to investigate the condition of backward class. This
article empowers the Commission so appointed to investigate the
condition of socially and educationally backward classes and to make
recommendations to the Union Government or the State Government as the
case may be in order to enable them to take steps which are necessary
to remove their difficulties and confer the benefits that should be
extended to them in order to get over the problems with which they are
facing. The earlier the Union and the State Governments take action to
identify backward classes on rational basis and give up the caste,
that would be better in the interest of the nation.
The very principle of excluding the creamy layer as laid down in the
case of Indra Sawhney and reiterated in Ashok Kumar Thakur (2008 (6)
SCC 1) indicate that in order to make reservation valid under Article
15(4) and 16(4) that the caste by itself without exclusion of creamy
layer cannot be identified as backward class. This principle laid down
in Indra Sawhney's case (1992 Supp. (3) SCC 217) and again reiterated
in the second case of Indra Sawhney Vs. Union of India (2000 (1) SCC
168) make it obligatory for the Union and the States to identify the
backward class on a rational basis which as pointed out by the Supreme
Court could be validly done on the basis of occupation.
Therefore, it is essential that identification of OBCs must be totally
disconnected from castes in order to make the backward class
classification in terms of the Constitution. If this is done, census
on caste basis would become unnecessary in order to do justice to OBCs
in terms of the constitutional position.
(The writer is Member of Parliament Rajya Sabha, and Former Chief
Justice of Punjab and Haryana High Court and former Governor of
Jharkhand and Bihar)
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