To My Revered Tauji Late Shri Shilendra Mishra Advocate

Dedicated To My Revered Tauji Late Shri Shilendra Mishra Advocate

EMPOWERMENT OF BACKWARD CLASSES THROUGH RESERVATION POLICY WITH REFERENCE TO DR. B.R. AMBEDKAR’S VISION AND CHALLENGES IN CURRENT SOCIO-LEGAL MILIEU

THESIS

Submitted for the Award of Degree of Doctor of Philosophy IN LAW

By ANKIT MISRA

Under the Supervision of PROF. (DR.) MOHAMMAD SHABBIR CHAIRMAN

DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH-202002 (INDIA) 2012 Certificate

This is to certify that Mr. Ankit Misra has completed his Ph.D. thesis captioned: Empowerment of Backward Classes through Reservation policy with Reference to Dr. B.R. Ambedkar’s Vision and Challenges in Current Socio-Legal Milieu for the award of the Degree of Doctor of Philosophy in Law under my supervision.

This is original work and meaningful contribution to the existing legal knowledge. This is fit for submission for the award of the Degree of Doctor of Philosophy in Law.

(Mohammad Shabbir)

ACKNOWLEDGEMENTS

It is my pleasant duty to express my sense of gratitude and obligations towards those without whose help and encouragement this work could never have been produced in this form.

I express my profound gratitude to my supervisor Professor Mohammad Shabbir, Chairman, Department of Law, Aligarh Muslim University, Aligarh for his expert guidance, valuable suggestions and encouragement to keep my endeavour intact towards the completion of this work.

I am equally grateful to Dr. (Mrs.) Khan Noor Ephroz, Principal, Vivekanand Law College, Aligarh for her encouragement, blessings and motherly love.

I feel immense pleasure to record my sincere gratitude to my esteemed teachers, Prof. Saleem Akhtar, Dean, Faculty of Law, Prof. Akhlaq Ahmad, Prof. I.A. Khan, Dr. Zubair Khan, Dr. Md. Waseem Ali, Dr. Zafar Iqbal, Dr. Nafees Ahmad, and all other teachers who have cooperated me a lot.

I express my deep sense of gratitude to my family specially my father, mother, bhaiyya, bhabhi and nephew Utkarsh.

I would like to acknowledge the cooperation and love of my wife Priya for her consistent encouragement to complete my work.

I am thankful to all of my friends Mr. Fakharuddin, Dr. Haider Ali, Mr. Ravindra Singh Pundir and his wife Gudiya Bhabhi, Mr. Zubair

iv Khan, Mr. Adnan Siddiqui, Mr. Aqeel Ahmad, Mr. Anil Tomar, Mr. Mueen Khan, Mr. Deepak Kumar and my dearest late Manoj Dixit.

My sincere thanks to Dr. B.R. Ambedkar Chair of legal studies and research, Department of Law, A.M.U., Aligarh and its staff especially Dr. Zafar Ahmad Khan, Mr. Zaheer and Shakeel for their interest and devotion in process of the completion of the work.

I am thankful to Mr. Kafeel Ahmad Khan who really deserves a special thanks for typing this work with ability and sincerity inspite of his very tight and busy schedule.

Last but not the least, I am grateful to all those who toiled behind the scene and assisted me in completing this research work.

(Ankit Misra)

v CONTENTS

Page No. Certificate Acknowledgements iv-v List of cases ix-xii List of abbreviations xiii-xiv

Introductory Remarks 1-27

PART-I

CHAPTER-I  Connotational analysis of reservation/protective discrimination/ affirmative action 28-40

CHAPTER-II  Evaluation of reservation policy in historical perspective 41-60-

PART-II

CHAPTER-I  Reservation is a world phenomenon as a means for empowering deprived and subjugated segments of society 61-66

CHAPTER-II  Survey of reservation policy as operative tool to empower in a few selected developed and developing countries 67-74

PART-III

CHAPTER-I  Scrutiny of legislative provisions ensuring reservation during British Regime 75-80

CHAPTER-II  Impact of freedom movement on reservation policy 81-95

vi PART-IV

CHAPTER-I  Critical Evaluation of the advocacy of reservation by prominent political leaders/legal luminaries/social reformers 96-113

CHAPTER-II  The vision and mission of Dr. B.R. Ambedkar to conceive an egalitarian society through the tool of reservation based on equality, liberty and fraternity 114-127

PART-V

CHAPTER-I  Constituent Assembly debate on reservation policy 128-135

CHAPTER-II  Reservation and Constitution of India 136-141

CHAPTER-III  Constitutional Amendment Recognizing/Ensuring Reservation 142-148

PART-VI

CHAPTER-I  Evaluation of Legislations (Central And State) Ensuring Empowerment Of Subjugated Classes 149-161

CHAPTER-II  Evaluation of Recommendations of various Commissions/ Committees/ panels/appointed by Union and State Governments. 162-214

PART-VII

CHAPTER-I  Evaluation of reservation policy as a means of empowerment to backward classes 215-228

vii CHAPTER-II  Appraisal of reservation as a potent tool for empowering the Scheduled Castes and Scheduled Tribes 229-244

PART-VIII

CHAPTER-I  Essence of politics in Backdrop/background of Reservation 245-288

CHAPTER-II  Reflection of discrimination in process of extending reservation to backward classes especially Muslim Backward Classes 289-314

PART-IX

CHAPTER-I  Reservation and equality of opportunity in educational Institutions, public jobs and legislative houses 315-330

CHAPTER-II  Need of Reservation in Private Sector 331-347

PART-X

CHAPTER-I  Evaluation of Judicial Response through Landmark judgments of Supreme Court and High Courts devoted on Reservation Policy 348-396

Concluding Remarks and Suggestions 397-420

Bibliography 421-433

viii ABSTRACT

Statement of Problem

The theme of Reservation Policy usually triggers controversies and evokes passionate reactions and debates amongst both adherents and detractors. Irrespective of the context in which it is invoked, the philosophical content of the idea is essentially contestable and complex. The Reservation policy debate is not between persons who are “Pro- equality” and others who are “Anti-equality”. Both the most ardent advocates of Reservation Policy and its most vehement foes loudly proclaim their allegiance to the ideal of equality.

The recent country wide debate, discussion and the proceedings in the Parliament, when the Women Reservation Bill was introduced, has once again brought the concept of reservation in Indian politics into limelight. The issue of reservation, however, is not an alien concept to the India Society. In fact, it has been in operation prior to our independence.

After so many years of its implementation, the reservation policy has reached a stage where both its supporters and critics are unhappy about it. The former are unhappy because it has not created a noticeable impact on the social and economic conditions of the Scheduled Castes (SCs) and Scheduled Tribes (STs), majority of whom still continue to be socially isolated, illiterate and poor. Its critics complain that in matters of employment, promotions and admissions, reservations have been stretched too far at the cost of merit and equity giving rise to frustration and alienation among the unreserved category.

The direct outcome of this policy was supposed to be more

1 equitable distribution of economic resources and a worthwhile sharing of power at different levels in the running of the state affairs. But in reality, what has actually happened is that this policy has been exploited by various pressure groups and vested interests within and outside the beneficiary castes and tribes. Extension of reservations to the Other Backward Classes (OBCs) and demand for reservation for the Dalit Christians, Muslims and women are a few examples of the opening up of the Pandora's Box. The Constitution of India is the whole crux of the problem from which emanates the reservation policies. The Constitution is based on the class philosophy of the bourgeoisie which is not supra historical, eternal and ideal to be accepted by all, and for all the time. The reservation policies became more and more the tools for electoral gain rather than a system for delivering the goods for economic and educational upliftment of the poor.

The policies did provide economic and political opportunities for individual mobility. A section of the untouchables and tribes who were at the fringe of the Indian societies moved out of their social position and became part of the privileged class of the system. They were incorporated into the exploitative system. Reservation Policies thus widened the support base of the system and made it more durable.

2 of life. The need to integrate the ethnic groups, minorities and other socially and culturally localized groups made the Constitution makers opt for providing Constitutional safeguards to these sections of the society in the form of reservation or protective discrimination. According to Justice K. Subba Rao, in a limited sense, the right to social justice may be defined as the right of the weak, aged, destitute, women and children and other under privileged persons, to be protect by State against the ruthless competition of life. It is a bundle of right: in one sense it is carved but of other's rights and in another sense, it is a preserver of other's rights.

Equality before law is the most precious democratic right of an Indian citizen. But by merely ensuring equality of opportunity to all citizens in respect of educational and employment opportunity, we may be ignoring the special problems of some backward sections of our society who have suffered from social, cultural, educational and economic deprivations for hundreds of years. It is a well-known dictum that there is equality only among equals. To equate unequal is to perpetuate inequality. When we allow weak and strong to compete on an equal footing, we are loading the dice in favour of the strong. As a matter of fact, unless adventitious aids are given to the under privileged people, it would be impossible to suggest that they have equal opportunities with the more advanced people. It is the real justification for the demand of social justice that the under privileged citizens should be given a preferential treatment.

An analysis of the history of 'reservation' as a means of promoting equality of opportunity will be useful in providing an insight regarding the debate over the intended beneficiaries of the protective discrimination and the conflicting pulls and pressures both social and political necessitating preferential policies.

3 The Scheduled Castes consist of the groups that are considered to be unapproachable and untouchables according to the Hindu social order. The functioning of this unit of Hindu social order was made according to the syntax of purity, pollution, devising a social economic framework with a religious and political sanction behind it SCs are specially segregated in the villages and towns and are engaged in occupations with negative prestige and had no role in the power structure of the local community. Hence they demanded to be brought into the mainstream and to be given the power to decide for their upliftment.

But the case of tribal has an altogether different history. Tribal insurgencies that intermittently challenged the state, eventually led the colonial rulers to accept them as a distinct social and political category. They were either quarantined in specific areas or were granted some patriarchal protective measure. But there were no reservation or similar special provisions in the state services or in education.

At the provincial level, in addition to castes and tribes, other socially identifiable col1ectives also carne to be recognized. The origin of present day "OBC" is located here. Two Indian states, Mysore and Travancore Cochin, took the lead along with two British Presidencies- Madras and Bombay-in this regard. Most of these OBCs came wider the rubric of "Depressed Classes", a category that originally came into official parlance with the introduction of Montague-Chelmsford reforms in 1919.

4 the consolidation of political regimes and introduction of the Western oriented education system, produced many structural disturbances in the Indian caste structure.

It is to be noted here that the reservation policy thus included in the Constitution in 1950 was based on certain assumptions. Firstly, it is not a permanent way of bringing the deprived sections of the society into the mainstream of Indian society on the basis of equality, freedom, dignity, self respect and power. A time limit of 10 years was set in the Constitution in 1950, with the hope that the government would implement the policy sincerely: Secondly, it was anticipated that with this policy the power and the creative energies of the state and the individuals in India will be deployed towards bringing out structural changes such as medical reforms, basic educational reforms, efforts to return to India's cultural and civilizational roots and for building up of a political and economic democracy in tune with the needs of the country. Thirdly, the majority of the members of the constituent assembly endorsed the policy as a continuing social duty and as an expression of atonement on their part for the inhuman exploitation of the untouchables.

What emerged ultimately was an unequivocal Constitutional policy providing for reservation of appointment and posts for the Backward Classes including the Schedule Castes and Tribes. One thing is clear from the above analysis that the underlying purpose of compensatory discrimination was to counter balance the disadvantages suffered by certain classes for past wrongs suffered by them because of unequal social structure of the Indian society.

It was on 26th November 1949 that the draft Constitution of India provided for such preferential treatment in the form of reservation to the

5 SCs and STs and recognized the need of the OBCs to be protected by the state. The Indian Constitution clearly says that justice is not only political but economic and social as well. Equality is not only of opportunity but also of status.

The Constitution specifically bars the state from discriminating against any citizen of India on grounds of religion, race, caste, sex, and place of birth or any of them. Article 29(2) also guarantees protection to educational institutions on grounds of religion, race, caste, language any of them. The first amendment of the Constitution incorporating clause (4) to Article 15, empowers the state to make special provisions for the advancement of any socially and educationally backward class of citizens or for the SCs and STs. Article 16(4) incorporated in the Constitution shall not prevent the state from making any provision for the reservation who in the opinion of state are not adequately represented is the services under the state. The law of protective discrimination also find its place in Article 29(2) which says that nothing in this Article shall prevent the state from making any special provision for the advancement of any socially and educationally backward class of citizens or for SCs and STs. Article 46 also contains similar provision.

On 7th August, 1990, the National Front Government announced its decision of reserving 27 percent of posts for other backward classes under the Central government and public undertakings. With this declaration the reservation policy that was hitherto confined to SCs and STs got extended to OBCs as well.

The Constitution is solicitous about the welfare of the backward classes of the Society. While expressly providing for the reservations of posts in the country’s public administration for two sections of such

6 classes namely, the SCs and the STs, it makes a general mention of similar promotional measure for what it calls “OBCs.”

The Constitution provided for the recognition of socially and educationally backward classes. Article 340 provided for the appointment of a Commission to investigate the conditions of the backward classes. On receipt of the report of the Commission thus appointed, the President may by order specify OBCs under Article 338(3) of the Constitution. Preferential treatment to the OBCs are to be covered under an egalitarian framework. While on one hand equality before law and prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of public employment and equality in cultural and educational rights are guaranteed as Fundamental Rights under Article 14, 15 (1 and 2), 29(2) respectively. On the other hand, Article 46 included in the Directive Principles of State Policy enjoins upon the State to 'promote with special care the educational and economic interests of the weaker sections of the people.

The apparent contradiction between the Fundamental Rights and the Directive Principles of the State Policy came out shortly after the commencement of the Constitution through a Supreme Court decision in April 1951. In the case of State of Madras v. Champakam Dorajian the Supreme Court struck down reservation in educational institutions in Madras and by implications barred all preferential treatment outside the areas of government employment for all groups other than the SCs and STs. This decision caused a political furor in South India and occasioned the prompt addition of clause 4 to Article 15 of the Constitution. It reads: "Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs.

7 Before going into the question of determination of the backward classes, it is necessary to appraise oneself about the historical usage of the term.

The term “Backward” is contextual. In one sense, it implies the presence of a forward or advanced counter part of the same entity. In another sense, in social realm, it may mean the presence of disadvantaged and advantaged sections in mutual interaction. However, in whatever sense the term 'backward' is used, it implies presence of· inequality. Marc Galanter has traced the use of the term 'backward class' since the last part of the 19th Century. According to him, the term was also meant as illiterate or indigent classes entitled to allowances for study in elementary schools. In 1928, the Hartog Committee defined "Backward Classes" in their glossary as 'castes or classes which are educationally backward". They include the depressed classes, aboriginal hill tribes and criminal tribes. In 1930, the State Committee in Bombay recommended that the term 'depressed classes' should be used in the sense of untouchables. They also proposed that the wider groups should be called 'backward classes'· which should be sub-divided into Depressed Classes (Untouchables), Aboriginals and the hill tribes, other backward classes (including wandering tribes). The Committee noted that the groups then currently called backward classes should be renamed ‘intermediate classes.’ Simon Commission refers to intermediate castes but makes no mention of backward classes. The objective resolution of Constituent Assembly, moved by Jawaharlal Nehru on December 1946, called for adequate safeguards to be made for OBCs along with general other categories of population.

There are many judicial pronouncements, which have interpreted the use of the terms 'class' in a general sense with reference to the socially

8 and educationally backward classes. The most important judgement which has been influencing judicial thinking is that between Balaji v. State of Mysore, wherein the Constitution held that caste, poverty, occupation, place of habitation were some relevant factors for determining backwardness.

The President of India, under Article 341 of the Constitution is empowered to specify the castes, races or tribes or parts of or groups within castes, races or tribes, which shall be deemed to be scheduled castes by notification. Under Article 342, he may by public notification specify the tribes or tribal communities or parts of or groups within it which shall be deemed to be STs. There is no such parallel Article of the Constitution for the backward classes. In fact no uniform nomenclature has been used in the Constitution to devote backward classes, e.g. Article 15 (4) and 340 use the expression 'socially and economically backward classes. Article 16(4) uses 'backward classes' whereas in Article 46, the terms used is 'weaker sections of the people'. As such it is one of the difficult problems to define the backward classes for the purpose of the Constitution.

It is the state responsibility to take effective steps for the upliftment of backward classes of citizens socially, educationally and economically. Backwardness may be measured in terms of low level of income, the extent of illiteracy and the low standard of life demonstrated by living conditions.

Many communities desire to be characterized as backward because of the facilities of admissions and services which are available to such classes and thus they bring all their political influence to bear upon the government for being recognized as backward. The danger is that the state

9 may abuse its power and permit such reservation of seats to the socially and educationally backward classes, which may not be justified.

On January 29, 1953, the President appointed the 1st Backward Classes Commission by virtue of the power entrusted to him under Article 310 of the Constitution, under the chairmanship of Kaka Saheb Kalelkar. The Commission was entrusted the task of determining the criteria for listing OBCs, investigating their conditions and recommending measures for their upliftment.

The Second Backward Classes Commission: On 20th December, 1978,.then Prime Minister, Morarji Desai announced in the Lok Sabha that under provision of Article 340 of the Constitution, the government has set up a commission to probe the conditions of socially and educationally backward classes with B.P. Mandal as Chairman.

The Commission made use of 11 indicators under the three headings, social, economic and educational to identify the degree of backwardness and granted them certain weightages in order to determine the OBCs. The Commission submitted its report on 31st December, 1980 and identified 3,743 OBCs. But the failure of the Commission to clearly formulate the criteria for identification of socially and educationally backward classes (SEBC) has led to absurdities. For instance, one of the most literate upper caste, which is also highly represented in services and politics, the Bengali Kayasths, have been listed as SEBC in Assam, the Patnaik (surname mostly used by high caste Oriyas) are SEBC in Bihar.

10 reservation accordingly. But keeping in view the Supreme Court judgement in Balaji v. State of Mysore and Devadasan v. Government of India that reservation of more than 50 percent of the vacancies would be violative of Article 15(1) of the Constitution and also in view of the fact that SCs and STs were already having reservation of 22.5 percent, Mandal Commission recommended 27 percent of reservation for the SEBC listed by them. Reservation should apply to promotions as well and unfilled reserved quota should be carried forward for 3 years before being unreserved.

But after the formal presentation of the report of the Mandal Commission in the Parliament in 1982, the Report was shelved down by the government led by Mrs. Indira Gandhi.

It was the National Front Government led by V.P. Singh, which chose to make the report public and to extend reservation benefit to the OBCs. In the year 1990, V.P. Singh announced in the Parliament that the decision represented the first phase of the implementation of the report of the Mandal Commission.

The report caught national attention and it was discussed widely and autopsied in the national press. The announcement triggered massive and widespread protest. There was large-scale violence in Bihar, Uttar Pradesh, Himachal Pradesh, Haryana, Punjab and Karnataka. About 100 persons were killed in police firing. Government property including railway, postal and telephone installations, State transport, State buses suffered extensive damage. The most tragic aspect of the agitation was the wave of attempts at suicides, mostly by students.

The Prime Minister and his close ministerial colleagues sought to justify the government's decision as having meant to ensure social justice

11 to the SEBCs and hence there would be no question of withdrawing his decision. It is perhaps not without significance that V.P. Singh decided to begin implementing the Mandal Commission recommendations by reserving 27 percent of the Central government and Central public sector jobs for the OBCs; he had not initiated any developmental steps like literacy drives, special educational measures, assistance to become entrepreneurs, professionals, etc. prescribed to overcome the social, educational and other backwardness of the OBCs, nor did he begin the measures like land reform. People hence could not be blamed if they felt that the then Prime Minister's intention was to win over the support of the more powerful, advanced and rich among the OBCs. This intention was further suggested by his refusal to modify the proposed 27 percent reservation by introducing an economic criterion or implement the Karpoori Thakur formulae on reservation which set apart a percentage of the jobs reserved for OBCs exclusively for weaker castes amongst them.

While dealing with reservation in the Public services the Constitution of India wants the claims of the target sections of society to be taken into consideration consistently with the maintenance of efficiency in administration. Of late, the efficiency of Public administration is getting ignored and by passed in the quest for vote. The immediate future is likely to see a further extension of reservation facilities to new groups.

The country is still fumbling with the implementation of 22.5 percent reservations for SCs and STs. The hefty addition of 27 percent reservation for OBCs is sure to place an enormous strain on the social system, unless lessons are learnt from the past and it is made sure that the maximum benefits are not covered by the more powerful castes. It is important to evolve a package that would help to identify the real needy

12 among the backward classes. Everyone should feel justified in asking for a meaningful implementation which is not just symbolical but actually assists the impoverished sections of the OBCs and thereby uphold the sanctity of a “welfare oriented Constitution”.

It should be remembered that reservations are part of a much larger policy package. It comprises a series of legislations, ameliorative programmes and preferential schemes designed to benefit the weaker sections of the society. Hence there is no need of rejecting preferential politics for pragmatic and utilitarian considerations. Reservations, along with other measures of protection and upliftment of the weaker sections of society, should be viewed as an instrument of a larger social policy of the state addressed to a long-term goal of creating a civil society through extending effective citizenship rights to the vast sections of the population who have been historically deprived and marginalized.

Research Methodology:

The methodology adopted by researcher is purely doctrinal in nature. It involved in depth study of source materials, text review, case study and comparative study. The research is based on two types of material i.e. primary materials and secondary materials. Primary materials consists of text of laws, declarations etc. on the issue. Secondary materials consist of books, articles, encyclopedia, research papers, newspapers and magazines. The research also includes study of case laws. Use of internet was also made to gather important information relating to the subject of study. The research is analytical and descriptive in nature. Mode of citation is uniform throughout the work. Articles from journals are cited as suggested by the respective journals themselves. While citing a textbook, the author’s name is cited first, followed by the title of the book,

13 volume, edition, year and at last page number.

Objective of the Study

 To trace the reservation policy in India and examine the extent to which the policy has contributed to the accentuation of caste consciousness.

 To explore whether reservation policy in its present form has succeeded in ameliorating the condition of the backward classes.

 To analyze the idea of creamy layer and the case for inclusion of economic criteria.

 To delineate the role-played by the judiciary as an arbiter in respect of the reservation issue.

 To examine the nature of politicization of caste in the post-Mandal phase with illustrative examples from different states.

 To explore the necessity of reservation policy in private sector due to the impact of privatization, industrialization and globalization in a liberalized economy.

 To analyze the political interference in reservation especially the discrimination in process of extending reservation to backward classes of Muslims.

 To examine the importance and necessity of the reservation, that how far the various reservation policies have been successful as a potent tool to empower and uplift the socio-economic conditions of the depressed and subjugated classes.

 To observe that how far the reservation policy has sensitized the depressed masses and made them empowered to fight against

14 injustices, inflicting on them.

 To trace the philosophy and contribution of Dr. B.R. Ambedkar and his vision and mission to uplift and empower the depressed, subjugated and backward classes.

Review of Literature:

There are some existing and relevant literatures on reservation policy and the role of judiciary regarding the upliftment of socio- economic conditions of subjugated, depressed and backward classes. Some relevant review of literature is given below:

Social justice and the politics of Reservation in India authored by Santosh Kumar V. (2008) focuses on the Post-Mandal Phase beginning from the late eighties when the political landscape of North India witnessed a sea change, with the dominant parties loosing their grip and the emergence of new parties that sought to capitalize on the divisive forces generated by the implementation of the recommendations of mandal report. This book covers considerable ground. It has defined the operational concepts, traced the evolution of reservation policy and its regional roots in India.

Reservation Policy and Judicial Activism authored by P.P. Vijayan (2006) presents full account of origin and development of reservation in India, Judicial Creativity towards Rationalization of Reservation and Legal Mechanics of Reservation and Judicial Balancing of the Conflicting Interests in Indian Society.

Dr. Ambedkar and Dalit future by Justice V.R. Krishna Iyer (2010) has given the brilliant credits regarding the philosophy, vision and mission of Dr. B.R. Ambedkar, it gives the ideas and contribution of Dr.

15 B.R. Ambedkar to uplift the socio-economic conditions of Dalits and OBCs.

Empowerment of the weaker sections in India edited by R.B.S. Verma, H.S. Verma and Rajkumar Singh (2006) this book gives the full account on the concept of empowerment its objectives and the empowerment of weaker sections i.e. SCs, STs and OBCs.

Reservation and private sector, edited by Shukhdeo Thorat, Aryama and Prashant Negi (2005) looks into the Conceptual Framework of Reservation and Equal Opportunity Perspectives in Private Sector, Reservation and Politics of Caste and Remedies against Discrimination.

Reservation Policy Issues and Implication by S. Nagendra Ambedkar (2008) sketches the relevancy of politics of affirmative action, reservation of government jobs and special political representation for the oppressed classes.

Empowerment of scheduled castes by R.V.K. Naidu (2004) is a comprehensive work on education, occupation, political empowerment of schedule castes.

Reservational Justice to other backward classes (OBCs) (1997) authored by Anirudh Prasad gives the deep insights and thought provoking study of central issues emerging out of reservational justice and in general and in post mandal case judgement in relation to reservational justice to OBC in particular. It gives full detail of Mandal Commission’s report, critique of the two national backward classes, Commissions, theoretical and practical issues, governmental commitment or otherwise to implement the measures ensuring reservational justice to OBCs.

16 Indian Constitutional law authored by M.P. Jain (2011) has discussed in detail regarding the reservation in the Constitutional framework with the brilliant judicial responses on the reservation policies.

Politics of Inclusion, Castes, Minorities and Affirmative Action by Zoya Hasan (2009) gives full account on Affirmative Action, Politics and Reservation of Muslim Minorities and Judicial response.

Hypothesis

There are numerous equations which need to be answered for this the doctrine of affirmative action is required to be looked into in historical perspective establishing the fact how it served as a tool of empowerment in different parts of the globe wherever subjugated, oppressed, neglected and backwards are there. Now it is an established fact that reservation as a policy is a well-established institution through Government norms for empowering needy. Thus reservation policy and its working is now global phenomenon. Dr. Ambedkar being involved in Championing the cause of downtrodden, oppressed and backward segments of our society, he studied about the ways and means for improving the lot of such needy persons. Out of his deep study of the world Scenario he reached conclusion that for pushing forward of those who are victim of rigid Caste ridden society, reservation was only viable effective means through that such persons could be empowered. He succeeded in getting realized the relevance and utility of reservation policy for the overall betterment of such segments of our society. It was realized that those who have been neglected, rejected subjugated, oppressed and lagging far behind must be pushed through the doctrine of protective discrimination affirmative action to come to mainstream

17 educationally financially and by their effective participation having membership in legislative houses by the result it is established that the reservation policy and its effective implementation has contributed considerably in process of empowering the subjugated and backward sections of our society through research process it is to be examined about the efficacy and need of extension of periodicity are to be determined. Members of higher caste are also sharply reacting that by reservation their legitimate rights are affected adversely they have reacted through the means of agitation creating unrest and chaos in society against the perpetuity of reservation.

The merit of their reaction and agitation is to be examined through this research venture.

Now there is a potent demand for the sanction of reservation in private sector too which is growing due to effective influence of industrialization, privatization and globalization. Through this research venture the merit of extension of reservation to private sector is to be determined. Now numerous caste, sect and groups even from upper caste are claiming for the extension of reservation in their favour. Besides socially and educationally backward segments, those who are economically backward are demanding the extension of reservation in their favor. Among upper caste those who are economically and educationally backward deserve for the favour of reservation is potently advocated from certain quarters. On all these issues through this research venture, legitimate effort shall be exhausted for bringing truth on surface. Those communities which belong to upper caste, but with the passage of time suffering from over all backwardness, namely educationally, economically and having no participatory role in legislative houses and also in process of governance like Indian Muslims today are also

18 demanding extension of reservation policy in their favor. On this important issue the researcher is obligated to come out with logical conclusion through this research venture. From certain quarters there is a demand that the reservation policy as the same is applicable in India must be reviewed encompassing the harsh realities focusing on realistic solution. On this count the researcher is obligated to focus for formulating certain realistic strategies. Which can be relied for solving the matter.

Our judiciary from time to time opined on the legitimacy and efficacy of reservation and came out with conclusion for the exclusion of ‘creamy-layer’ for making reservation policy effective and rewarding currently.

Limitations of the study

The study is limited by the nature of data that is available. For example, we do not have any caste-based data other than what is available from the 1931 census, which is by any standards outdated. There is also no reliable data about the representation of various castes / communities in government services. Most of the published literature including the reports of the Commissions/Committees consulted in the study have relied either on outdate or unreliable data or have largely neglected the related aspects of the reservation issue. This is a limitation of the study.

Research Work Plan

The total research project is subject to the divide into ten parts.

19 of society sharing the vision and mission of Dr. B.R. Ambedkar and its relevance coupled with contemporary challenges shrouded with reservation policy.

Part second deals with the relevance and utility of reservation policy as a means of empowerment for improving the lot of subjugated sections and backward classes as world phenomenon especially in India.

Part third is dealing with the reservation and its recognition during British Regime in India and its recognition through legal documents and the role of freedom movement and its impact on reservation policy.

Part fourth is focused on the advocacy of reservation by prominent political leaders and social reformers especially the vision and mission of Dr. B.R. Ambedkar to conceive an egalitarian society through the tool of reservation based on equality, liberty and fraternity.

Part fifth is devoted to study the reservation policy as debated and discussed in the process of Constitution making by the constituent assembly. The incorporation of the policy of Affirmative action within the framework of the Constitution of India and the Constitutional amendments which pave the way for realization of reservation policy.

Part sixth looks into different legislations (Centre and State) ensuring empowerment of subjugated classes and recommendations of various Commissions/Committees/Panels appointed by the Union and State Governments to streamline the implementation of reservation for recommending the people/caste/sects/groups for the benefit of reservation.

Part seventh deals with relevance and utility of reservation policy as a means of empowerment to subjugated sections and backward classes.

20 Part eighth looks into the political interference in the backdrop of reservation especially the discrimination in process of extending reservation to backward classes of Muslims.

Part ninth examines the reservation and equality of opportunity in educational institutions, public jobs and legislative houses and the potent advocacy for extension of reservation to the private sector due to the impact of privatization, industrialization and globalization.

Part tenth examines typically the judicial response devoted on reservation policy, its implementation and criteria for determining the beneficiaries.

At last the researcher has given an exhaustive conclusion in which the crux of whole research venture has been summarized again the concluding remark has been followed by didactic and progressive suggestions which may enrich the existing knowledge on reservation which may also be beneficial to our contemporary and coming generation and will help to empower and uplift the depressed and subjugated classes.

Source of Research Material

The research material has been collected by the researcher from various libraries i.e., the Maulana Azad Library, AMU, Aligarh, Law Seminar Library, Department of Law, AMU, Aligarh, Library, Dr. B.R. Ambedkar Chair of Legal Studies and Research, Department of Law, AMU, Aligarh, Library, The Institute of Constitutional and Parliamentary Studies, New Delhi, Library, Indian Law Institute, New Delhi, Library, Department of Law, Jamia Milliya Islamia University, New Delhi, Library, Department of Law, Delhi University, Delhi, Library, Parliament of India, New Delhi, Library, Indian Institute of Dalit Studies, New

21 Delhi, Seminar Library, Department of Political Science, AMU, Aligarh, Seminar Library, Department of Sociology, AMU, Aligarh.

As poignant as economic impoverishment and marginalization, are social disabilities arising on the basis of religion, race, caste, sex or place of birth. The Constitution of India envisions an egalitarian society and assures in its preamble social, economic and political justice and equality of status and of opportunity. The most potent fundamental right to equality is the fountain head from which principles of reservation for the underprivileged and the backward classes spring. The Constitution therefore expressly provides that special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes shall not be considered as offending the equality principle. It is a reminder of the social and economic inequalities that fester our society and the conscious efforts needed to eradicate the scourge. The Directive Principles of State Policy set out an agenda to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

Economic upliftment comes essentially through guaranteeing an adequate share of participation and selection, with relaxation in criteria especially as regards age, educational qualification are important objectives realized through reservations. Significantly, it shall not be merely at the entry level into public employment but also in matters of promotion with consequential seniority to any class or classes of posts, which in the opinion of the State are not adequately represented. Unfilled vacancies in a year which are reserved for being filled up in that year may be filled by in any succeeding year or years without clubbing with

22 the vacancies of the year in which they are being filled up.

With the object of promoting educational and economic interests of backward classes and removing social disabilities attached to them and in order to bring them at par with the rest of the communities, the Constitution of India prescribes protection and safeguard for them. Within the constitutional framework, the Government stands committed to the welfare and development of its people in general and hitherto deprived sections in particular. The Preamble, Fundamental Rights, Directive Principles of the State Policy and various other Articles of the Constitution stand testimony to the commitment of the State. The State can do so either by way of affirmative action or preferential treatment, i.e. reservation, which seeks to offset systematic and cumulative deprivation. Such preferential treatment is available to ensure a share of power and opportunity to the historically disadvantaged to promote their advancement until they can hold on their own without it. Special provisions of affirmative action and preferential treatment incorporated in the Constitution may be classified into three major categories – Protective, Political and Developmental.

So for as protective provisions are concerned, Articles 15(4) and 29 provide for reservation of seats for admission in educational institutions. Reservation of posts in government services is made under Articles 16(4), 320(4) and 335. Under the political provisions, Articles 330 and 332 provide for reservation in Parliament and State legislatures.

With a view to fulfilling the constitutional obligations towards development, a number of development programmes have been designed and implemented by the government. All these are oriented towards providing social justice and empowerment to hitherto deprived and

23 marginalized sections of the society viz. SCs, STs and OBCs The responsibility of implementing the schemes of reservation is shared by the Central and State governments. The Central Government is responsible for formulating the related policies and programmes besides coordinating and promoting implementation by the States. In order to ensure equal social status to the SCs, STs and OBCs, the Union and the States' Governments have implemented the recommendations of various Commissions and Committees appointed for faming of reservation policies.

Though, the State's policy of preferential treatment to hitherto deprived sections of the society has long been in existence in India but it is yet to be realized in full. Therefore, while initiatives are needed to ensure its wider reach amongst the more deserving and neglected people on the one hand simultaneously, an expert scrutiny is also needed to prevent its use as a tool to serve partisan political interests, on the other. In view of these, research work reviews the results of implementation and to make a comparative study of impact of reservation policies. Special attention has been paid on educational upliftment, economic transformation, political awareness and other social advancement measures.

Education has all along been considered a powerful instrument of social, economic and cultural development. Therefore, the system of education should be so designed as to enable each and every individual of the society to develop his/her capacity and aptitude to the maximum extent. In India, the present system of education has been devised accordingly on the sound principle of social justice in accordance with the provisions laid down in the Constitution. Continuous effort is being made for educating the weaker sections, namely, the SCs, STs and other

24 backward groups of people. As a result, there has been rapid expansion of higher education system in terms of enrolment, number of institutions and growth rate, etc. since independence. After formulation of New Education Policy in 1986, the system has undergone a rapid and unique transformation from an elitist to an egalitarian one. All sections of the population have gained the benefit of such enlarged system. However, disparity between disadvantaged groups viz. SCs, STs and OBCs and non-disadvantaged groups still continues. Even after the framing of NEP, majority of SC, ST and OBC students have limited opportunity of good education. The reasons are not far off to seek. For one thing, the importance of providing them a good education is not realized by their parents as they do not have the tradition of education in their families. Secondly, extent and level of social interaction between them and their fellow students, and teachers is still largely governed by the traditional ethos of the society. Under such circumstances, very few students of these communities become able to upgrade themselves from lower to higher, especially college and University levels of education. Some times, they get enrolled at inferior educational institutions because of their weak socio-economic status, low aptitude for higher education, etc.

Though, there has been a gradual increase in the enrolment of the SCs and STs in schools but their educational achievements are meagre in comparison to higher castes. As the level of education increases, the number of enrolment decreases at each level. Their representation is always lower than that of general students, The drop out rate among STs is more than that of SCs, The corresponding figure of dropout rates in 1981 and 1991 was 91.18 and 86.00 per cent respectively as against 86.91 and 80.58 per cent. The reason for dropouts, especially after primary

25 level, might be their economic backwardness and lack of awareness towards the importance of education.

Inspite of plethora of progressive steps, the golden dream of B.R. Ambedkar framer of Indian Constitution to bring an egalitarian society could not be' realized even amongst beneficiaries of the reservation policy. Echoing the same, RCSCST in its Sixth Report observed:

“The commission feels that economic equality is an important consideration, but not enough unless the weaker sections are at par socially as well, and are free from all manner of social exploitation. Such a stage had not been reached by any standards whatsoever, the Commission would suggest the Government to devise measures to give priority in reservations to the weaker among the weaker sections of Scheduled Caste/Scheduled Tribe and simultaneously call upon the economically and socially better off among the Scheduled Caste/Scheduled Tribe to voluntarily abstain from claiming benefits such a policy would be continued till the appropriate time.”

The observation reveals that emphasis has been laid on social and economic upliftment. But, the benefit of reservation is yet to percolate to the real beneficiaries as the representation of most backward sections of SCs, STs and OBCs in the posts and services under the state is negligible. With the increasing socio-economic and political development, the age old social values and behaviour pattern of people of backward communities have also been transformed and a 'new class- upper backward class' has emerged from within the backwards. These affluent groups of backwards have fully gripped the political leadership and cornered the maximum benefits. Consequently, majority of backward classes has been deprived of their due. The Mandal Commission also

26 expressed the fear that the major benefits of reservation and other welfare measures for OBCs would be cornered by the more advanced sections of the backward communities.

Keeping in view the aforesaid aspect, the Supreme Court has evolved the doctrine of 'creamy layer' in Mandal case. This doctrine would vouchsafe social justice to the deserving sections of backward communities. It would also meet the major criticism against caste-based reservation that the benefits of reservation policy are cornered by the effluents in the backward castes. The only problem that remains is that of faithful implementation of the creamy layer doctrine.

There are three major areas – education, employment and politics – wherein the policy of reservation has been introduced. The first two categories have been discussed, whereas the political reservation is being discussed hereunder.

Under the constitutional scheme of political reservation, a definite number of seats have been reserved for the hitherto deprived in the political institutions of the country. Even, the system of Panchayati Raj which has acquired the constitutional status has been introduced in almost all the states, provides reservation for SCs, STs and OBCs as well. Keeping in view the political justice, this system has been extended to the tribal areas also.

27 given to the Scheduled Tribes, which is in operation till now. In state legislatures, the percentage of seats embarked for them varies according to the size of their population in the concerned state.

The Reservations for OBCs had multiple effects. They are yet to be realized in full. Reservations have been continuously progressing toward desired goal. They have proved to be of great satisfaction to the SCs/STs and OBCs communities as a whole. The SCs, STs and OBCs may be seen almost in all the fronts and every walk of life. Despite all these, they still have a long way to go before they can come up to the level of other communities in the fields of education, employment, etc. Indeed, there has been a quantitative improvement in the position of the beneficiary class but the benefit has not spread over to the entire populace covered by reservation policy. The members of the communities by and large are still not able to stand on their own while dealing with the upper castes and classes. Consequently, they have to look for quota reserved for them. The problem, therefore, still needs a thorough study and understanding of root cause of their inability and backwardness.

The existing system of reservation should be reviewed at regular interval. The state should also endeavour to identify most backward groups amongst the backwards and put them on priority within overall prescribed percentage of reservation to ensure their socio-economic development. This will silence the criticism that benefit of reservation hardly reaches the most backward section of SEBCs. It is also time to initiate a debate whether a policy of creamy layer or some other strategy to benefit the lowest rung of the Scheduled Castes be not adopted so that the benefit of government policies are not cornered by the relatively advanced sections of SCs. Simultaneously, the officials, the public servants of the country, in whose hands the responsibility of

28 implementing the policy of reservations rests, have to ensure that the benefit of reservation policy should percolate to the grass-root level, i.e., most backward, poor, subjugated, depressed and helpless people of these communities, then we can realize the needs of an equal society which was the dream of Dr. B.R. Ambedkar. The Massiah and champion of rights of the depressed classes.

Suggestions

The researcher has discussed above all the spectrums of reservation of SCs, STs and OBCs, which is to be followed by some didactic, progressive and thought provoking suggestions which may be further beneficial and path breaking to uplift the socio-economic conditions of the subjugated classes in Indian society, and the same are given below:

1) Incentives and Financial Assistances to individual SCs, STs and OBCs wanting to pursue Higher Studies, particularly Post Graduate Studies in Professional Spheres like Architecture, Engineering, Medicine, Management, Law etc, and take up Advanced Courses like M Phil, Ph D and Post Doctoral Studies and Specialist Trainings 2) Incentives and Financial Assistances to the Families, for encouraging individual SCs, STs and OBCs to pursue Higher Studies 3) Incentives to individual Teachers, Professors and Officials for encouraging helping developing and training SCs, STs and OBCs Students, Professionals, Employees and Officials 4) Incentives to Schools, Colleges, Universities and Government Departments / Ministries / Public Sector Enterprises, Banks. Financial Institutions, Autonomous Bodies and Private Sector for

29 teaching employing and encouraging SCs, STs and OBCs. 5) Penalties for the Teachers, Professors, Officers and Schools, Colleges, Universities, Offices and other Establishments who/ which do not follow and fail to implement the Reservations, and discourage SCs, STs and OBCs 6) Reservations in all Govt. Offices, Public Sector Enterprises, Banks, Financial Institutions and Autonomous Institutions without any exceptions 7) Reservations in every Public Service, Post, Grade and Level, right from the top most Public Office to down below, without any exemption whatsoever 8) Reservations in all Educational Institutions Govt. or Private, in Admissions of Students and Scholars, and also in the. Recruitments and Promotions of Teaching Faculty as well as the non-Teaching Staff 9) Reservations in the Joint Sector Organizations 10) Reservations in all Establishments where the Govt. and the Public have a share 11) Reservations in all Establishments which make use of Public Facilities created with Public Funds, or created for the use of the People 12) Reservations in all Establishments making use of Land and other Natural Resources of the Country 13) Reservations in Employment in all Private Sector Establishments 14) Reservations in all Courts, including Law Officers and the Judiciary 15) Lateral Entry of SCs, STs and OBCs into various Services and Cadres at higher Levels Grades and Posts, to improve and ensure

30 their full Representations at every level 16) Free mobility of SCs, STs and OBCs Professionals and Academicians, between and across Govt. Bureaucracy, Administration, Public Sector, Joint Sector, Private Sector, Voluntary Organizations and into the Universities 17) National and State Level Administrative and Professional Training Establishments for the OBCs and minorities specially Muslims, to develop and improve their Administrative and Professional Competence and Capabilities 18) National SCs, STs and OBCs Housing Finance and Development Corporations 19) National and State/UT Level Centres for SCs, STs and OBCs Development 20) National Level Centres for Planning for, SCs, STs and OBCs Education and Employment 21) National and State/UT Level Task Forces, for Entrepreneurship Development amongst the SCs, STs and OBCs. 22) Separate Tribunals to look into and expeditiously dispose off the Cases of SCs, STs and OBCs Employees 23) Separate District Level Courts to expeditiously hear and decide the Cases of SCs, STs and OBCs Lands taken away by others 24) A Special Judicial Commission to exclusively look into the Judgements of the various Judges, who have a tendency to decide cases against SCs, STs and OBCs, and make specific recommendations to the Govt. to protect the interests and Welfare of the SCs, STs and OBCs 25) A Special Committee to visit and look into the working of SCs, STs and OBCs Student Hostels and make appropriate

31 Recommendations to the Govt. to improve the Conditions and Working of these Hostels 26) Awards for Selection, Recruitment and Promotion of SCs, STs and OBCs, similar to those for the physically handicapped. 27) Recognition of Individuals and Institutions, working for the Development and Integration of the SCs, STs and OBCs specially backward Muslims. 28) Special Insurance Schemes, to protect and also provide succour and help to the SCs, STs and OBCs, from suspensions terminations and non-payment of salaries and wages 29) A Cadre of Rural Welfare and Labour Officers, to look into and expeditiously solve the Grievances of the Workers in the Rural Areas and in the Unorganized Sectors 30) Special Social Security Schemes, for the SCs & STs, especially the educated and unemployed 31) Special Tax Concessions, to SCs & STs to educate their Children, and for sending them for Higher Studies or Studies Abroad, and or for Specialist and Advanced Courses and Trainings 32) Special Concessions, to SCs & STs for building their own homes, to eliminate the slums and the growing problems associated with them that dehumanizes the people 33) Special Schemes and Concessions to SC & ST Entrepreneurs taking up self-employment, starting their own business, and setting up their own industries 34) Special Programmes, to harness and utilize the talents, knowledge and experiences of retired SCs, STs and OBCs Professionals, for the Development and improving the Standards of Life of the SCs, STs and OBCs Communities

32 35) Government should promote inter-caste marriages in big way for abolition of caste system 36) To weaken the caste system in society children born of inter-caste marriages should be given reservation 37) Benefit of reservation should be given only for first two children. 38) The benefit of reservation should also be given to those families who are living below poverty line. Irrespective of caste, color or sex. 39) The Govt. should also regularly Constitute an High Power Committee, at least every two years, to review the Allocation, Utilization, Appropriation and Diversion of the Funds meant and Budgeted for the Education Welfare and Development of the SCs, STs and OBCs both in the States/UTs and at the Centre.

The most important conclusion which researcher derives from this research work establishes that there is wisdom in justifying reservation policy for structurally disadvantaged groups. As the aims, vision and mission of our Constitution and Dr. Baba Saheb Ambedkar is equality irrespective of any bias on the basis of caste, colour, place, religion, creed or sex. Backward classes should be nurtured, educated and uplifted properly and judiciously so that they could be empowered. To balance the society it is paramount that subjugated classes should be educated, sensitized, respected, employed and empowered at par with the global requirements

33 LIST OF ABBREVIATIONS

AC : Appeal Cases AIR : All India Reporter All : Allahabad Art. : Article CAD : Constituent Assembly Debate CJ : Chief Justice Ed : Edition EPW : Economic and Political Weekly GO : Government Order H.C. : High Court i.e. : That is Ibid : Same reference and same page Id : Same reference but different page ILR : Indian Law Reporter Infra : Below J : Journal JILI : Journal of the Indian Law Institute JT : Judgement Today NCBC : National Commission for Backward Classes NCM : National Commission for Minorities NHRC : National Human Rights Commission No : Number OBCs : Other Backward Classes OUP : Oxford University Press

xiii P : Page PIL : Public Interest Litigation PP : Pages RCSCST : Report of the Commissioner for Scheduled Castes and Scheduled Tribes RTC : Round Table Conference RTI : Right to Information SC : Supreme Court SCC : Supreme Court Cases SCJ : Supreme Court Judgement SCR : Sachchar Committee Report SCs : Scheduled Castes SCW : Supreme Court Weekly SEBC : Socially and Economically Backward Classes Sec : Section SOL : Supreme Court Online STs : Scheduled Tribes Supra : Above UK : United Kingdom US : United States Vol. : Volume

xiv LIST OF CASES

A. Periya Karuppan v. State of Tamil Nadu, A.I.R., 1995, SC 432.

A.R. Chaudhary v. Union of India, A.I.R., 1997, SC 2101.

AIIMS Students Union v. AIIMS, A.I.R., 2001, SC 717.

Ajit Singh v. State of Punjab, A.I.R., 1997, SC 1095.

Ashok Kumar Thakur v. Union of India and others, (2008) 6 SCC 1.

B. Sayeed Ahmad v. State of Mysore (1995) Supp (1) SCC 432.

B. Venkitaramana v. State of Madras, A.I.R., 2001, SC 3262.

Balram v. Periyakarappan, A.I.R., 1997, SC 1451.

Bandhua Mukti Morcha v. Union of India, A.I.R., 1984, SC 802.

C.R. Srinivasan v. State of Madras, A.I.R., 1997, SC 1095.

Chakradhar Paswan v. State of Bihar, A.I.R., 1962, SC 36.

Chitralekha v. State of Mysore, 1996 (9) JT (SC) 320.

Commissioner of Commercial Taxes v. D. Sethu Madhva Rao, 1996 (9) JT (SC) 320.

Comptroller v. Jagannathan, A.I.R., 1987, SC 537.

Dilip Kumar v. State of U.P., A.I.R., 2000, SC 1296.

Fancis Coralie Mulin v. Administrator Union Territory of Delhi, A.I.R., 1981, SC 746.

G.N. Guidigar v. State of Mysore, A.I.R., 1997, SC 2133.

Gaurav Jain v. Union of India, A.I.R. 1997, SC 3021.

ix Govind v. State of M.P., A.I.R., 1975, SC 1378.

Indra Sawhney v. Union of India, A.I.R., 1993, SC 477.

K. Duraisamy and others v. State of Tamil Nadu and others, A.I.R., 1998, SC 680.

Kesava v. State of Mysore, A.I.R., 1999, SC 3471.

Kumar, K.S. Jaishri v. State of Kerala, A.I.R., 1975, SC 1.

M.C. Mehra v. State of Tamil Nadu, A.I.R., 1984 SC 802.

M.P. v. Nivedita Jain, A.I.R., 1972, SC 2381.

M.R. Balaji and others v. State of Mysore and others, A.I.R., 1997, SC 2101.

Mohan Veer Singh Chawla v. Punjab University, 1996 (9) SCALE 351.

Narayan Sharma v. Pankaj Kumar Lehkar, A.I.R., 2001, SC 3006.

Nishi Maghu v. State of J & K, 1996, A.I.R., SCW 2248.

Nishi Maghu v. State of J & K, A.I.R., 1988, SC 925.

P. Rajendra v. State of Madras, A.I.R., 1984, SC 1831.

P. Rajendran v. State of Madras (1974) 1 SCC 87, A.I.R., 1974, SC 532.

P. Sagar v. State of A.P. (1996) 5 SCC 167.

P.G. Institute of Medical Education and Research v. K.L. Narasimhan, A.I.R., 1997, SC 303.

P.S. Ghalaud v. State of Haryana and others, A.I.R., 1989, SC 135.

Paravatnalini v. State of Orissa and others, A.I.R., 1998, SC 3687.

Pradeep Jain v. Union of India, A.I.R., 1980, SC 1420.

Pradip Tandon v. State of U.P., A.I.R., 1973 All. 592.

x Prem Prakash and others v. Union of India, A.I.R., 1951, SC 226.

Priti Srivastava v. State of M.P., A.I.R., 1997, SC 1120.

R.C. Poudyal v. Union of India, 1994, SCC 324.

Rajendra Pal v. State of Punjab (1996) 5 SCC 167.

Rajesh Kumar Verma v. State of M.P., A.I.R., 1981, SC 2945.

Rajiv Mittal v. Maharishi Dayanand University, A.I.R., 1996, SC 1378.

Rangachari v. G.M. Southern Railways, A.I.R., 2000, SC 72.

Ritesh R. Shah v. Y.L. Yamul, A.I.R., 2001, SC 3006.

S. Murthy v. State of Karnataka, A.I.R., 1996, SC 351.

Sadhna Devi v. State of U.P., A.I.R., 1995, SC 1421.

Scheduled Castes and Scheduled Tribes Officers Welfare Council v. State of U.P., A.I.R., 2000, SC 609.

Shetty v. State of Mysore, A.I.R., 2000, SC 609.

Sri Manchegowda v. State of Karnataka, A.I.R., 1984, SC 1151.

State of Bihar v. Bageshwarki Prasad, A.I.R., 1996, SCW 2248.

State of Bihar v. Balmukund Shah, A.I.R., 1997, SC 3687.

State of Karnataka v. K.B. Urushabendra Kumar, A.I.R., 1980, SC 1975.

State of Madras v. Champkam Durai Rajan, A.I.R., 1968, SC 1012.

State of Punjab v. Dayanand Medical College & Hospital, A.I.R., 1988, SC 481.

State of Punjab v. Dayanand Medical College and Hospital, A.I.R., 1999, SC 2894.

State of Punjab v. G.S. Gill, A.I.R., 2000, SC 450.

xi State of U.P. v. Deenanath Shukla, A.I.R., 1994, SC 1528.

Subhash Chandra v. State of U.P., A.I.R., 1998, SC 1767.

Superintending Engineer, Public Health, Union Territory Chandigarh v. Kuldeep Singh, A.I.R., 1997, SC 1451.

Union of India v. Brij Lal Thakur, A.I.R., 1999, SC 3471.

Union of India v. Madhav (1997) 6 SCC 129.

V.V. Giri v. Dora Dippala Suri, A.I.R., 1959, SC 1318.

Venkataswarlu v. Government of Andhra Pradesh A.I.R., 1974, SC 532.

Vishal Jeet v. Union of India, A.I.R., 1990, SC 1412.

xii INTRODUCTORY REMARKS

Statement of Problem

1 The direct outcome of this policy was supposed to be more equitable distribution of economic resources and a worthwhile sharing of power at different levels in the running of the state affairs. But in reality, what has actually happened is that this policy has been exploited by various pressure groups and vested interests within and outside the beneficiary castes and tribes. Extension of reservations to the Other Backward Classes (OBCs) and demand for reservation for the Dalit Christians, Muslims and women are a few examples of the opening up of the Pandora's Box. The Constitution of India is the whole crux of the problem from which emanates the reservation policies. The Constitution is based on the class philosophy of the bourgeoisie which is not supra historical, eternal and ideal to be accepted by all, and for all the time. The reservation policies became more and more the tools for electoral gain rather than a system for delivering the goods for economic and educational upliftment of the poor.

Marxists have also provided a philosophical basis to the existing reservation policy. They view the 'reservation policy' as a safety measure which the government uses in order to sustain its own existence. Instead of undertaking a series of welfare measures required to solve the problems of unemployment, illiteracy and poverty especially prevalent amongst the minority groups in India, the Indian state chose the easier

2 way out. It began giving special assistance in the name of reservation to these communities in order to appease them. .

A caste ridden Indian society, which never had the opportunity to be organized on the basis of equity even in the formal sense, needs to be structured in a way leading to the goal of social equality. The caste system is not rooted only in economic inequality; hence a decisive social change towards social equality cannot be left to economic functions alone. Justice demands fair distribution of authority, income and status. Marc Galanter characterizes Indian society as a "compartmental society" within which a vast number of groups maintain distinct and diverse styles of life. The need to integrate the ethnic groups, minorities and other socially and culturally localized groups made the Constitution makers opt for providing Constitutional safeguards to these sections of the society in the form of reservation or protective discrimination. According to Justice K. Subba Rao, in a limited sense, the right to social justice may be defined as the right of the weak, aged, destitute, women and children and other under privileged persons, to be protect by State against the ruthless competition of life. It is a bundle of right: in one sense it is carved but of other's rights and in another sense, it is a preserver of other's rights.

3 equal footing, we are loading the dice in favour of the strong. As a matter of fact, unless adventitious aids are given to the under privileged people, it would be impossible to suggest that they have equal opportunities with the more advanced people. It is the real justification for the demand of social justice that the under privileged citizens should be given a preferential treatment.

The Scheduled Castes consist of the groups that are considered to be unapproachable and untouchables according to the Hindu social order. The functioning of this unit of Hindu social order was made according to the syntax of purity, pollution, devising a social economic framework with a religious and political sanction behind it SCs are specially segregated in the villages and towns and are engaged in occupations with negative prestige and had no role in the power structure of the local community. Hence they demanded to be brought into the mainstream and to be given the power to decide for their upliftment.

4 At the provincial level, in addition to castes and tribes, other socially identifiable col1ectives also carne to be recognized. The origin of present day "OBC" is located here. Two Indian states, Mysore and Travancore Cochin, took the lead along with two British Presidencies- Madras and Bombay-in this regard. Most of these OBCs came wider the rubric of "Depressed Classes", a category that originally came into official parlance with the introduction of Montague-Chelmsford reforms in 1919.

The era of emancipation of untouchables began with the advent of the British rule and major spokesman like Dr. Ambedkar and Mahatma Gandhi. But, it would not be entirely correct to conceive that reservation is a British legacy. The advent of the British rule on the other hand, with the consolidation of political regimes and introduction of the Western oriented education system, produced many structural disturbances in the Indian caste structure.

Brahmins being the literate caste responded quickly to the western education and entered in big numbers to governmental services and professions. The emphasis of British rule upon the egalitarian system of justice with new ideas of equality of opportunity impressed the Brahmins. But later, the distributive aspects of justice appealed to non-literate caste on the ground that these values were totally inconsistent with the gap between different castes. It gave rise to social reform movements aimed at eliminating caste disabilities, abolition of sati, upliftment of depressed classes etc.

It can be noted that Provincial governments in India were also implementing special programmes for the welfare of the depressed

5 classes. The first such step was taken by Madras government with the framing of grants in aid code in 1885 to regulate financial and educational institutions, providing special facilities to the students of the depressed classes. Subsequently in 1921, acting on a resolution passed by the State Legislative Council, Madras government took steps for higher representations of non-Brahmins in government services.

On the basis of representations received from the depressed communities in 1918, the Maharaja of Mysore had appointed a Committee under the Chairmanship of Sir L.C. Miller, the then Chief Justice of Mysore to recommend steps for adequate representations of non-Brahmins in the services of the state. On the basis of the Report of the Committee, the Government of Mysore issued orders in 1921 extending special facilities to the depressed communities with regard to education and recruitment in State Services. Earlier, Census Report of 1910 had divided the Hindus into three categories (a) Hindus, (b) Animists and Tribals and (c) the Depressed Classes or Untouchables. Giving separate importance to untouchables acquired a new political dimension. Later, the Government of India Act 1919 provided for communal representations for Muslims, Sikhs, Anglo Indians, Christians, Depressed classes, etc. Similar communal reservation was provided by the Government of India Act 1935. The purpose of such reservation was to pacify different sections of minorities in India, especially the Muslims and to consolidate their positions.

The Round Table Conference held in 1930, marked the beginning of the claims of the untouchables in the area of the devolution of the political power from the British rulers to the Indian natives. In the second Round Table Conference in 1931, Gandhi refused to consider both the

6 separate electorates for the depressed classes as well as any form of special representation involving reserved seats. On the other hand Dr. Ambedkar wanted future Constitution to give some means such as equal citizenship, fundamental rights for equality before law and possession of equal civil rights and abolition of disabilities arising out of untouchability, representation of, depressed classes in the cabinet. After the Third Round Table Conference in 1932, Communal Award was declared under which the depressed classes were given seats that were to be filled up by sections from special constituencies in which they alone could vote. However, Gandhi's displeasure ended in Pact, which provided for reservation of seats in the provincial and in central legislature for the depressed classes through Joint electorates. It also declared about the representation of these classes in the public service. The number of seats reserved for the depressed classes was increased to equal their proportion of population.

On 13th December 1946, Jawaharlal Nehru, moved a resolution which was in the nature of a pledge, a statement of policy and an introduction to the philosophy underlying the Indian Constitution. Clause 5 of the resolution stated, 'wherein shall be guaranteed and secured to all the people of India Justice, social, economic and political, equality of status of opportunity and before the law, freedom of thought and expression, belief, faith, worship, vocation, association and action subject to law and public morality", Clause 6 provides, 'Wherein adequate safeguards shall be provided for minorities, tribal areas and depressed and other backward classes" Notwithstanding the above resolution, a controversy was gaining ground for sometime between Muslim League and Congress party over the question of job reservation for Muslim

7 minorities. Nehru opposed such demand not only for Muslims but for any other minority group. In pursuance of the suggestion of the Cabinet Mission Plan an Advisory Committee on the Fundamental Rights and Minorities was set up by the Constituent Assembly containing due representation of all minorities in India. In the Advisory Committee, special demands for reservation of posts for their communities was made by Sikhs and Anglo Indians Dr. Ambedkar made a very strong case for Schedule Castes. The Sub-Committee on minorities submitted its report to the Advisory Committee with Sardar Patel as its Chairman, Patel showed opposition to any proposal for reservation in services for any minority community. The Committee recommended that there should be some part of the Constitution or the Schedule to keep view the claims of all minorities in making appointments to public services consistently with the maintenance of efficiency in administration.

The Constitution straight away accorded specific recognition to both SCs and STs (Arts. 341 and 342) and made corresponding guarantees in the form of reservations in legislatures (Art. 330 and 332), claims in services and posts (Art. 335) and in other forms (Arts. 17, 338 and 339). Their interests are also to guide the Directive Principles of State policy (Arts. 38 and 46).

Thus when it comes to preferential treatment of groups of people who otherwise face discrimination in our society, the Constitution left many uncovered in an explicit fashion except in the case of SCs and STs. But the makers of the Constitution were aware of the need for such facilities to other similar groups, otherwise the promise of equality would make no sense in an inherently iniquitous society. It is in this context that the expression backward class of citizens or socially and educationally

8 backward classes of citizens should be understood.

It was on 26th November 1949 that the draft Constitution of India provided for such preferential treatment in the form of reservation to the SCs and STs and recognized the need of the OBCs to be protected by the

9 state. The Indian Constitution clearly says that justice is not only political but economic and social as well. Equality is not only of opportunity but also of status.

10 classes namely, the SCs and the STs, it makes a general mention of similar promotional measure for what it calls “OBCs.”

11 and educationally backward classes of citizens or for the SCs and STs.

Before going into the question of determination of the backward classes, it is necessary to appraise oneself about the historical usage of the term.

12 There are many judicial pronouncements, which have interpreted the use of the terms 'class' in a general sense with reference to the socially and educationally backward classes. The most important judgement which has been influencing judicial thinking is that between Balaji v. State of Mysore, wherein the Constitution held that caste, poverty, occupation, place of habitation were some relevant factors for determining backwardness.

Many communities desire to be characterized as backward because

13 of the facilities of admissions and services which are available to such classes and thus they bring all their political influence to bear upon the government for being recognized as backward. The danger is that the state may abuse its power and permit such reservation of seats to the socially and educationally backward classes, which may not be justified.

Kalelkar Commission prepared a list of 2399 backward castes or communities from the entire country and made use of criteria such as inadequate or no representation in joint service and commerce, lack of educational advancement, low social position in society, etc. The Commission recommended reservation of 70 percent of seats in all technical and professional institutions for qualified students in all government services and local bodies for OBCs.

However, the report disclosed a considerable divergence of opinion among its members and the Commission failed to specify any easily discernible objective test to define 'backwardness'. Moreover, it seemed that caste was the chief basis of enumeration and preparation of the list of backward classes. The Central government could not accept such criterion.

The Second Backward Classes Commission: On 20th December, 1978,.then Prime Minister, Morarji Desai announced in the Lok Sabha

14 that under provision of Article 340 of the Constitution, the government has set up a commission to probe the conditions of socially and educationally backward classes with B.P. Mandal as Chairman.

The Rajput in Karnataka has been similarly listed. The Bengalis as a whole are listed as SEBC in Madhya Pradesh. One can find many such entries in the Mandal Commission as undeserving. They would be able to take advantage of the privileges conferred by the government as per the recommendations of the Commission and further enhance their position in the rural power structure.

The Report of the Mandal Commission held that since the SCs and STs which constituted 22.5 percent of the country's population had been given 22.5 percent reservation in government and public sector jobs, the OBCs who constituted 52.1 percent of the population should be given reservation accordingly. But keeping in view the Supreme Court judgement in Balaji v. State of Mysore and Devadasan v. Government of India that reservation of more than 50 percent of the vacancies would be

15 violative of Article 15(1) of the Constitution and also in view of the fact that SCs and STs were already having reservation of 22.5 percent, Mandal Commission recommended 27 percent of reservation for the SEBC listed by them. Reservation should apply to promotions as well and unfilled reserved quota should be carried forward for 3 years before being unreserved.

But after the formal presentation of the report of the Mandal Commission in the Parliament in 1982, the Report was shelved down by the government led by Mrs. Indira Gandhi.

The Prime Minister and his close ministerial colleagues sought to justify the government's decision as having meant to ensure social justice to the SEBCs and hence there would be no question of withdrawing his decision. It is perhaps not without significance that V.P. Singh decided to

16 begin implementing the Mandal Commission recommendations by reserving 27 percent of the Central government and Central public sector jobs for the OBCs; he had not initiated any developmental steps like literacy drives, special educational measures, assistance to become entrepreneurs, professionals, etc. prescribed to overcome the social, educational and other backwardness of the OBCs, nor did he begin the measures like land reform. People hence could not be blamed if they felt that the then Prime Minister's intention was to win over the support of the more powerful, advanced and rich among the OBCs. This intention was further suggested by his refusal to modify the proposed 27 percent reservation by introducing an economic criterion or implement the Karpoori Thakur formulae on reservation which set apart a percentage of the jobs reserved for OBCs exclusively for weaker castes amongst them.

17 a meaningful implementation which is not just symbolical but actually assists the impoverished sections of the OBCs and thereby uphold the sanctity of a “welfare oriented Constitution”.

Research Methodology:

18 volume, edition, year and at last page number.

Objective of the Study

 To trace the reservation policy in India and examine the extent to which the policy has contributed to the accentuation of caste consciousness.

 To explore whether reservation policy in its present form has succeeded in ameliorating the condition of the backward classes.

 To analyze the idea of creamy layer and the case for inclusion of economic criteria.

 To delineate the role-played by the judiciary as an arbiter in respect of the reservation issue.

 To examine the nature of politicization of caste in the post-Mandal phase with illustrative examples from different states.

 To explore the necessity of reservation policy in private sector due to the impact of privatization, industrialization and globalization in a liberalized economy.

 To analyze the political interference in reservation especially the discrimination in process of extending reservation to backward classes of Muslims.

 To observe that how far the reservation policy has sensitized the

19 depressed masses and made them empowered to fight against injustices, inflicting on them.

 To trace the philosophy and contribution of Dr. B.R. Ambedkar and his vision and mission to uplift and empower the depressed, subjugated and backward classes.

Review of Literature:

Dr. Ambedkar and Dalit future by Justice V.R. Krishna Iyer (2010) has given the brilliant credits regarding the philosophy, vision and

20 mission of Dr. B.R. Ambedkar, it gives the ideas and contribution of Dr. B.R. Ambedkar to uplift the socio-economic conditions of Dalits and OBCs.

Empowerment of scheduled castes by R.V.K. Naidu (2004) is a comprehensive work on education, occupation, political empowerment of schedule castes.

21 or otherwise to implement the measures ensuring reservational justice to OBCs.

Indian Constitutional law authored by M.P. Jain (2011) has discussed in detail regarding the reservation in the Constitutional framework with the brilliant judicial responses on the reservation policies.

Politics of Inclusion, Castes, Minorities and Affirmative Action by Zoya Hasan (2009) gives full account on Affirmative Action, Politics and Reservation of Muslim Minorities and Judicial response.

Hypothesis

22 realized that those who have been neglected, rejected subjugated, oppressed and lagging far behind must be pushed through the doctrine of protective discrimination affirmative action to come to mainstream educationally financially and by their effective participation having membership in legislative houses by the result it is established that the reservation policy and its effective implementation has contributed considerably in process of empowering the subjugated and backward sections of our society through research process it is to be examined about the efficacy and need of extension of periodicity are to be determined. Members of higher caste are also sharply reacting that by reservation their legitimate rights are affected adversely they have reacted through the means of agitation creating unrest and chaos in society against the perpetuity of reservation.

The merit of their reaction and agitation is to be examined through this research venture.

23 Those communities which belong to upper caste, but with the passage of time suffering from over all backwardness, namely educationally, economically and having no participatory role in legislative houses and also in process of governance like Indian Muslims today are also demanding extension of reservation policy in their favor. On this important issue the researcher is obligated to come out with logical conclusion through this research venture. From certain quarters there is a demand that the reservation policy as the same is applicable in India must be reviewed encompassing the harsh realities focusing on realistic solution. On this count the researcher is obligated to focus for formulating certain realistic strategies. Which can be relied for solving the matter.

Limitations of the study

24 Research Work Plan

The total research project is subject to the divide into ten parts.

The first part is devoted to look into the connotational aspect of Reservation/Affirmative action/Protective discrimination. Reservation is to looked into as a policy in historical perspective focusing it as a tool of empowerment of subjugated, neglected, oppressed and backward classes of society sharing the vision and mission of Dr. B.R. Ambedkar and its relevance coupled with contemporary challenges shrouded with reservation policy.

25 Part sixth looks into different legislations (Centre and State) ensuring empowerment of subjugated classes and recommendations of various Commissions/Committees/Panels appointed by the Union and State Governments to streamline the implementation of reservation for recommending the people/caste/sects/groups for the benefit of reservation.

Part seventh deals with relevance and utility of reservation policy as a means of empowerment to subjugated sections and backward classes.

Part eighth looks into the political interference in the backdrop of reservation especially the discrimination in process of extending reservation to backward classes of Muslims.

Part tenth examines typically the judicial response devoted on reservation policy, its implementation and criteria for determining the beneficiaries.

26 Source of Research Material

27 PART-I

CHAPTER-I

CONNOTATIONAL ANALYSIS OF RESERVATION/ PROTECTIVE DISCRIMINATION/AFFIRMATIVE ACTION

Legal umpiring is very much required to resolve disputes pertaining to reservation policy. All three wings of the State, legislature, executive and judiciary have to act in unison for delivering social, political and economic justice to the citizens. But instead of a healthy coordination there is a subtle rivalry among them; especially between the political executive and judiciary.

The legislature is influenced if not dominated by partyism in a parliamentary system of democracy. This has led to Scheduled Castes organizing themselves into political parties in various parts of India. The best example is Bahujan Samaj Party (BSP). Scheduled Tribes, to a certain extent succeeded in having new States for Tribals and Hill people like, Chattisgarh, Jharkhand and Uttarakhand. Thus parliamentary system has encouraged the power bargaining and power brokering and this has a boost to consolidation and not to caste elimination.

This tendency is reflected in the formation of political executive namely the formation of Council of Ministers both at the Centre and at the State levels. The permanent executive being dominated by the upper castes is not sincere in implementing the reservation policy in its letter and spirit. This inevitably leads to political as well as legal conflicts and political articulations clearly point out the need for an effective

28 monitoring system to see whether the reservational laws are of help to the backward classes in overcoming their social disabilities. In a sense the backward classes do get political awareness and they often feel that they are being used as ‘vote banks’. But this kind of thinking will only encourage divisive tendencies.

The judiciary, though in the initial stages approached reservation laws in dry legal way of interpreting laws by letter and grammar, later revealed a more liberal and active approach in interpreting reservation laws with the touchstone of Constitutional provisions.

It is far from my intention to argue that the claims to equality of individuals and collectivities are nicely balanced in the Constitution of India or that they can be nicely balanced. Law and politics in India have, in fact, been bedeviled by these conflicting claims ever since the Constitution came into effect. It cannot be too strongly emphasized that the Constitution treats the provision in favour of Scheduled Castes and Scheduled Tribes.

The main concern of any political society should be the inequality from which some sections suffer. This inequality is to be understood as a historical continuum of an erstwhile ethos of a society. It might have created a social inequality or economic inequality or both and consequently causing political inequality too in the world of realpolitik. Hence constitutional guarantees to social and economic equality along with political equality have become the raison d’etre of the very system of government. This has been duly acknowledged in the Indian Constitution as special provisions. Ambedkar himself argued in the Constituent Assembly that these special provisions should not be allowed to ‘eat up’ the general provisions of equality of opportunity for all

29 individuals alike. These special provisions continue to be in force, and it cannot be argued that, because they take collective identities into account and perhaps even strengthen them, they are by definition hostile to the spirit of equality.1

The crux of the problem in cases relating to reservation can be easily understood if one can discern the conflicting facets of the concept of equality. Whenever the legality and legitimacy of reservation are discussed the concept of equality enshrined in Article 14 of the Indian Constitution becomes the core theme. The policy of reservation is based on the argument that it would be injustice to treat socially and economically backward people on par with the ‘upper classes’. The very concept of equality needs to be examined for in Politics as well as in Law the concept has a Western import and obviously the semantic content that West attributes to it may be alien to the Asian mind.

Concept of Reservation Policy:

Reservation policy has as its avowed objective the amelioration of BCs who were victims of the prevalent caste system, a feature unique to the Indian social milieu. Therefore, a composite definition of this policy has not been provided.

It is generally understood as involving three aspects positive discrimination, reverse discrimination and compensatory discrimination. Positive discrimination involves providing special treatment to those who are susceptible to exploitation. Reverse discrimination is a sort of vindictive measure, which in other words means discrimination against those who had discriminated a particular class for centuries. Compensatory discrimination involved adoption of measures to safeguard the interest of historically disadvantaged section of people.2

30 Equality has its ramifications reflected mainly as natural equality, social equality, political equality, economic equality, legal equality, and ultimately international equality. The list is not complete; yet it is interesting to note that in the social life of humans, a member of the society always faces problems connected with one kind of equality or other. This multi-dimensional aspect of equality generates complex issues. Parliamentary democracies, which demand support of the majority in the legislature for the political executive, makes the problems all the more complicated.3 Yet within a political society based on a legal framework of constitutionalism these problems should be solved in a peaceful atmosphere observing the legal principles laid down in the basic law of the land.

The concept of equality is intertwined with other social and jurisprudential concepts like ‘right’, ‘liberty’, ‘fraternity’, ‘property’ and ‘justice’ thus making the concept a multi-dimensional one. Hence “of all the basic concepts of social, moral and political philosophy, none is more intriguing and none is more baffling than it.”4 Perhaps this intriguing nature of the concept might have made Earnest Barker remark: “Equality is a protean notion: it changes its shape and assumes new forms with a ready facility.”5 However, the term equality might evoke a sense of leveling. That is why Laski said; “Undoubtedly it (equality) implies fundamentally a certain leveling process. It means that no man shall be so placed in society that he can overreach his neighbour to the extent, which constitutes a denial of latter’s citizenship.”6

F.A. Hayek, another thinker of renown, says,

As a statement of fact it is just not true that all men are born equal. We may continue to use this hallowed phrase

31 to express the ideal that legally and morally all men ought to be treated alike. But if we want to understand what this ideal of equality can or should mean, the first requirement is that we free ourselves from the belief in factual equality.7

He opines that there is a conflict between the concept of equality and the reality of inequality. At the same time he believes that ‘equality before law’, which is a prerequisite of a free society, would automatically entail equality in material welfare.

Equality becomes an essential ingredient for a better life and better life for their members is the aim of all political societies. A deeper analysis would bring forth the truth that the positive aspect of equality is achieved only when there is “an appropriate opportunity for each; what is to be equalized is not the opportunity to enter a profession or to be successful in business but the opportunity to lead a good life, or to fulfill one’s personality.”8 Therefore the sense of justice demands that when the policy of reservation is formulated and executed it must have the nexus with the objectives sought, namely ‘to lead a good life’ and ‘fulfill one’s personality’. Whether this ultimate goal is achieved by the political system, is a pertinent question to be asked both by the decision makers and by the justice delivers.

Modern democracy postulates ‘equality’ as the cardinal principle of governance, because of the very fact that democracy presupposes the participation of citizens in the decision making process, and the very decisions the citizens are making or authorize others to make on their behalf affects their future and thereby affects the future of the political society of which they are members. For the better functioning of

32 democratic system political equality becomes the most indispensable ingredient. All democratic states, therefore, ensure equality of citizens by way of giving each one of them one vote. But this ‘equality’ is inadequate because of the very fact that other inequalities, especially economic and social inequalities, overwhelm the political equality. Thus ‘inequalities’ in other spheres of life become significant for this will breed inequities, which will, from within, disrupt the very democratic fabric.

Inequality is inherent in humans. The Marxian philosophy would proclaim that the inequalities were caused by the fact of who owns the means of production. And hence the class difference and consequently class-conflict between the ‘haves’ and ‘have-nots’ is inevitable. The panacea for resolving this lies in the establishment of socialism. Thus the socialists thinkers make the concept of equality an avowed norm for achieving the utopia of class society. Obviously the emphasis of the socialist thinkers is on the economic equality. Criticizing the Marxian approach Bertrand Russell says, “The greatest political evil is not inequality of wealth as the Bolshevik theorists insist, but inequality of power.”9

More or less in the same fashion Dahrendorf points out authority as the basis for inequality. As Bains remarks:

“[H] is contribution, however, lies in his recognition of authority as the basis of inequality. It may be stated that power plays a major role in the unequal distribution of resources.”10 Thus the concept of equality has an inevitable nexus with that of power. But again power has its own ramifications. A person may try to develop his personality and he may use every avenue of power he has. This could be termed as ‘developmental power’. But there are persons who may try to extract

33 advantages from the abilities of others. This could be termed as ‘extractive power.’ This is the qualitative aspect of power. It all depends on the inherent capacity of persons concerned. It has a value-dimension also, because the society may not approve of any misuse of power. The basic principle that society imposes certain moral as well as legal obligations upon the members should be understood in the light of this basic postulate.11

Equality is a normative concept. It implies that all persons should be treated equally by providing equal opportunity so that they could develop their personality and thereby the State may also be benefited. But can all be weighed equally? Thus, in a given socio-politico-economic situation, perfect equality becomes an ideal to be achieved, nevertheless it is a pragmatic program that is to be sincerely adopted and vigorously pursued. How can Law pursue it? In this regard it would be better if the lawmakers take note of what Rawls says. There are two essential aspects of equality. “First each person is to have equal right to extensive basic liberty compatible with similar liberty of others. Second, social and economic inequalities are to be arranged so that they are both.

(a) reasonably expected to be everyone’s advantage and

(b) attached to positions and offices equally open to all.”12 Rawls goes on to examine the nexus between ‘equality’ and ‘justice’. He considers ‘fairness’ as an inseparable part of the concept of justice.

The concept of equality, therefore, poses problems both at the philosophical level and on the pragmatic plane. As Ben and Peter’s state:

A positive egalitarianism, demanding similar treatment of all, irrespective of any difference, would clearly lead to absurdities. To sweep away all distinctions would be to

34 commit injustices as inexcusable as any under attack. Moral progress is made as much by making new and justifiable distinctions as by eliminating established but irrelevant ‘inequalities’.13

What are to be considered ‘irrelevant inequalities’ is a pertinent question often faced by the lawmakers and judicial pundits? It seems that for the elimination of irrelevant inequalities, what Laski calls, ‘the leveling process’ is required.14 However, perfect equality is impossible to achieve and hence “equals should be treated equally and the unequal unequally and the respect in which they are considered unequal must be relevant to the differences in treatment that we propose.”15 Yet the question remains who is to assess the inequality and what normative yardstick one has to adopt.

Inequality can be viewed from different angles. Inequality in physical stature is an obvious fact and cannot be done away with. Inequality in the realm of mind and brain is also a fact for which reasons abound. In modern times we speak about the ‘human resource’; but if that resource were to be utilized properly, it should be made more potent. It means the potentiality of the individual is to be developed to the utmost extent possible. This will also point out to the fact that each person must be given sufficient and relevant opportunity to cultivate his potentialities. Thus it is imperative that a democratic State should make such opportunity available to all citizens. Then only the State could create wealth, which ought to precede the sharing of wealth.

But the dilemma faced by the modern liberal democracies, is that to decide the degree of inequality and consequent affirmative action to be taken should ‘classes of people’ be taken as the basic unit or the

35 ‘individual’. As Nesiah points out: “Thomas Sowell, among the first Black academies to speak out against preferential policies, argues that affirmative action programmes have made suspect that qualifications and occupational status of every member of the groups benefited. Sowell has been particularly critical of the application of affirmative action within the academic community.”16 Again he continues to reproduce Sowell’s arguments:

Sowell distinguishes between what he sees as two contradictory senses in which the term ‘civil rights’ is used. In the first, ‘civil rights’ means that individuals are viewed and treated within a framework, which is ‘blind’ to their gender or ethnic origins. In the second, ‘civil rights’ has come to be equated with affirmative action ‘biased’ towards specific ethnic groups or one particular gender. Sowell’s quarrel is with the latter interpretation, and he is particularly critical of the principle of ‘proportional equality’.17

While not fully sharing the opinion of Sowell, Nesiah observes “In all three countries (The USA, India and Malaysia) there is an inherent elite bias in preferential policies.” He says this is evident particularly in India for the benefits usually accrue only to the upper segments of the protected categories.

In this context observations of Professor Ronald Dworkin are also relevant. Speaking on affirmative action, he emphasizes the need to distinguish equality as a right from equality as a policy.18 According to him political theory has virtually ignored this distinction. He further states that there is a distinction between the right to equal treatment and

36 the right to treatment as an equal. The former is ‘the right to an equal distribution of some opportunity, resource or burden’ but the latter treatment implies the right ‘to be treated with the same respect and concern as anyone else.19 It seems that the latter one has a socio- psychological dimension. In spite of Constitutional commandments and legal provisions that guarantee ‘equality’, there is hostility and rivalry among the communities. Another observation by Ivan Reid about the British society is indeed thought provoking.”… These issues (relating to social class differences) are based on questions of social equality and justice.”20 Emphasizing the role of education in this regard he says, “For some the provision of equal opportunities is a sufficient end in itself, for others the end is equality of outcome, which is only achieved when educational attainment of the classes, sexes and ethnic groups is identical.”21

Yet another concept closely connected with equality is ‘social justice. Justice is a word with a host of semantic ramifications. It was the fulcrum around which the dialogue on Plato’s Republic revolves. And ‘ideal state’ became the only answer to realize the ideal of justice. Even today the concept is too elusive to be comprehended and too evasive to be implemented. Yet one can safely proceed on the assumption ‘that justice is a positive ethical social value.’22 Stone has described this ethical value content in the following words: “Men can (and often do) judge things to be just or unjust without formulating any norms attendant on the vague notions which base their judgments; but to explain such judgments, they will always be found to resort to propositions which are tacitly, if not expressly, normative.”23 But in realpolitik it has become a slogan to be used and a myth to be perpetuated. Covenants and Constitutions, therefore, invariably incorporate this ideal.

37 The Preamble of the Indian Constitution too declares Justice, social, political and economic as the noble objective. But unfortunately the Constitutional practice for over half a century presents a sad story of deviation, distortion and dysfunction. Equality of treatment is one of the cardinal principles of a democracy. But in a society that has been practicing inequality as a way of life a sudden shift in the power structure that equality would bring about is something intolerable. But social justice demands this power shift.

Secondly in an unequal society, social justice demands unequals to be treated unequally. In other words those who were at the lower rungs of the social ladder must be given the benefits of ‘protective discrimination’ for the obvious reason that they cannot compete with those who have already been at the upper strata. But here too social tension is created owing to the process of ‘power shift’ from the classes of citizens who were enjoying it to some other classes who were deprived of it. This again is to be resolved if social justice is to become reality. The period of transformation inevitably brings in points of conflict. And herein comes the Judiciary that tries to restore justice by umpiring. Hence people often approach the Court in the hope of getting justice. There are many laws including directives in the Constitution for ensuring social justice to the people especially to the underprivileged. Yet even today social justice in its philosophic content has come to become distorted at the pragmatic plane. But this is not something confined to Indian condition. As V.R. Krishna Iyer comments:

The Statute book of India contains much legislation designed to lift the Dalits, to abolish their disabilities and to give them special opportunities for advancement in education and in employment. Bonded labour is by law abolished. Untouchability, by Constitution, is forbidden.

38 The Civil Rights Act goes a long way to eliminate injustice inflicted on the Dalits. Especially stern punishments are prescribed for commission of offences against Scheduled castes and Tribes, but these magic remedies sleep as paper tigers. The social evils continue. The economic wrongs go on. The law is dead, vis-à-vis these unfortunates. There are plans and sub- plans, schemes and projects worked out by the administration at the Central and State levels. There are special reservations for employment and education and these facilities look like reverse discrimination. But what are the raw realities? Tolstoy’s biting words set the tone for a social audit of the performance. The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it, and we did, but only the words were abolished, not the thing.24

In the Indian political scenario, social justice became an adjunct to the political discourse when Western political philosophies of ‘liberalism’ and ‘socialism’ made inroads into the minds of the educated elite. The elite among the depressed and backward classes came to consider ‘social justice’ an indispensable agenda and as much important as freeing the country from the colonial shackles. This ideal was symbolized, in Ambedkar and his efforts to give social justice its due place in the basic law resulted in the incorporation of provisions for reservation.

The connotational analysis of Renovation / Protective discrimination/ affirmative action lies in the jurisprudential perspective of the problem of resolving the conflicts arising out of inequalities has given rise to certain doctrines like ‘reservation’, ‘protective discrimination’ and ‘affirmative action’.25 Among these the policy of reservation is more political in nature for it tries to strike a compromise between the equality principles envisaged by law and the political solution that would appeal to the concerned group of citizens. In doing so the ostensible purpose is to

39 achieve ‘social justice.’ When this policy is given legal expression by way of Constitutional guarantee and statutory protection, the justification is found in the doctrine of protective discrimination.’ The dynamics of law demands that it must be put into effective action. The role of the executive, therefore, is emphasized in the doctrine of ‘affirmative action’. But all these doctrines are only the reflection of various dimensions of the principle of equality in its political ramifications, legislative formulations, executive endeavours and judicial activism.

The term ‘affirmative action’ has been used since the early 60s – when President Kennedy employed it in Executive Order No. 10925 to describe public policies intended “to overcome the present effects of past racial discrimination.” Also known as ‘preferential treatment’ or ‘reverse discrimination’, affirmative action is based on arrangements, whereby the law sanctions special measures or differences in treatment that, when certain conditions exist, depart from the differences in treatment that, when certain conditions exist, depart from the principle of formal equality. Usually, such special measures aim at protecting, or promoting the welfare of the members of a group previously discriminated against, provided that the group desires such measures26

40 Part-I

Chapter – II

EVALUATION OF RESERVATION POLICY IN HISTORICAL PERSPECTIVE

The Reservation policy in India was established during the decades of the British Rule but such a policy was designed more to redress communal inequalities in the representation in public services rather than a social engineering device to redress the rooted socio-economic inequalities of the disadvantaged section of the society because of past societal discrimination27. The British India Government has introduced special provisions and concession for the educational advancement of backward classes people, which was later converted into Caste Reservation for Jobs28. The entry of a Scheduled Caste into an educational institution in the country was recorded in year 1856.29 It was is June, 1856 that a Scheduled Caste boy applied for admission into a government school in Dharwal, Bombay Presidency. The incident had created furore in the administration which ultimately attracted the attention of the rulers. The board of directors were then forced to formulate on educational policy where it was stated that as long as the schools are maintained by government the classes of its subjects are to be given admission without and distinction of caste, religion and race. This policy was further strengthened with the enactment of the Caste Disability Act of 1872.30 This act was a severe blow to the social and legal inequalities suffered by weaker sections. The demand for entry into educational institutions and for equality of opportunity was first started in the south. Two southern States including parts of Maharshtra have 41 witnessed movements of the weaker sections for equality due to the pioneering work, done by Brahma Naidu, Narayana Guru, Jyothirao Phule among others under these conditions, the first government circular reserving certain posts in favor of backward caste was made in June 19- 21, 1895 by the Maysore Government.31

In 1856, the Government of Bombay had to consider the case of a Mahar boy, who was refused admission to the government. School at Dharwar. It was announced in a press note, “Although the Govern-in- Council does not contemplate the introduction of Low caste pupils in schools, the expenses of which are shared with Government by local contributors and patrons who object to such a measure, he reserved to himself, the full right of refusing the support of government to any particularly aided school in which the benefits of education are withheld from any class of persons on account of caste or race and further pointed that all schools maintained at the sole cost of government shall be open to all classes of its subjects without distinction”.32

Political representation as a means to emancipate the backward sections of Indian society from the age old bondage was not given recognition during the nineteenth century. Thus the Government of India Act of 1858 and the Indian Council Acts of 1861 and 1892 did not recognize the special claims of the depressed classes.33 The dawn of twentieth century also did not herald their recognition as a political entry. In the Government of India Act, 1909 certain privileges were provided to Muslims, but there were no representation for the depressed classes. For the first time the census report of 1910 divided the Hindu into three

Categories :-

(a) Hindus

42 (b) Animists and Tribals,

As a result the census report of 1910, giving separate importance to untouchables acquired a new political dimension.

On the basis of representations received from the depressed communities, in 1918, the Maharaja of Mysore appointed in the same year the Miller Committee to recommend steps for adequate representation for non-Brahmins in the services of the state.34 The Government of Mysore, on the basis of the above committee report, extend special benefits to these classes, in education and recruitment in the state services. In Madras Presidency out of every twelve posts five had to go to non-Brahmins two to Brahmins, two to Muslims, two to Anglo-Indians or Indian Christians and one to depressed classes.

The Government of India Act, 1919 recognized the first time in Indian History the existence of depressed classes and recognized their claim for political representation. The Government of India Act, 1919 provided for communal representations for Muslims, Sikhs, Ango- Indians, Indian Christians, depressed classes, Aborigines etc.35 Among the 14 non-official members nominated by the Governor-General to the central Legislative Assembly, one was the representative of the depressed classes. In the provincial Legislature the depressed classes were represented by four nominations in the central provinces, two in Bombay, two in Bihar and one each in Bengal and the United Provinces. In Madras ten members were nominated to represent nine specified depressed classes.36

Dr. Ambedkar started for the social emancipation and political mobilization of the people of the oppressed state. He was effective in

43 highlighting the inhuman treatment to which they were subjected by Hindu Philosophy. He divided Hindu civilization into touchable Hindus and untouchable Hindus and pleaded for their representation in the legislative councils on social point of view. His arguments before the Southern-Borough Committee was: A community may claim representation only on the ground of separate interests which require protection. In India such interest are of three kinds only : either they arise out of religious antipathies which are pretty strong in India, or out of the backward state of a community in educational matters, or out of the socio-religions disabilities to which a community may be a subject. Confining ourselves to the Hindu communities there are communities who, besides being very backward, are suffering under a great social tyranny. The untouchable classes must have their own men in the councils hall to fight for the redress of their grievances. The non- Brahmins as a class are subjected to the social and intellectual domination of the Brahmins Priesthood and may, therefore, rightly advocate separate representation.”37

On the basis on this, he applied two principles such as the standing of a community and principle of minority to determine their quota of representation. The Montague-Chelmsford reforms thus recognizing the differences and divisions within the existing social system preferred nominations for depressed classes to the legislative council.38

In 1923, the government issued a resolution that no grants would be paid to any aided educational institution which refused admission to the children of depressed classes. A resolution of the Govt. of Bombay Finance Department, dated 17 September 1923, expressly prohibited recruitment to the lower services from the advanced class of Brahmins and other till a certain proportion of the post was held by members of the

44 intermediate and Backward Classes. In 1925, a bill was introduced in the Madras legislative council to put under statute the principle of a resolution passed in the previous session of the council throwing open all public roads, streets or path ways giving access to any public office, well, tank or place of public resort, to all classes of people including the depressed.39

The grounds on which the reservation of posts supported were, first, that the Brahmins and other castes which have a very strong majority in the personnel of the services, can and do harass the populace simply because they are non-Brahmins. Second, that in the selection for fresh vacancies the dominant castes make it impossible for the non- Brahmins to get the posts.40

It was in 1928, that the Government of Bombay setup a Committee under the Chairmanship of O.A.B. Starte to identify Backward classes and recommend special provisions for their advancement. In its report submitted in 1930 this committee classified backward classes into three categories, i.e.,

“ Depressed classes, Aboriginals and Hill Tribes and other Backward Classes.”41

The constitutional advancement involved the extension of the principle of responsible self-government in the provinces. B.R. Ambedkar Submitted a classic memorandum of the Simon Commission for the safeguards and protection of the Scheduled Saste. He did this on behalf of the Bahsikrit Hitkarini Sabha. The memorandum complained that those in charge of nations affairs always forgot the dumb millions and added that under the Act of 1919 grave injustice was done to the depressed classes who constitute one fifth of the population of British

45 India. It demanded 22 out of 140 seats in Bombay legislative council, vehemently opposed the principal of nomination and insisted upon the extension of the principle of election to the depressed classes. It said that they needed political education and as ministership was very important privilege, they must find a place in the cabinet.42

The Round Table Conference held in 1930, marked “the beginning of the claims of the untouchables in the arena of the devolution of the political power from the British rulers to the Indian natives.”43 In this conference Ambedkar shifted his position arguing for separate electorates for the depressed classes during a ten-year period, because restricted franchise would weaken the position of the depressed classes politically.

In this Second Round Table Conference in 1931, is indeed very historic. The congress agreed to participate in the conference and secondly there began a historic and long drawn controversy between Mahatma Gandhi and Dr. B.R. Ambedkar over the position of the depressed classes in India. Mahatma Gandhi wanted to change the society with the willing consent of the orthodox, whereas Ambedkar was not ready for any pretences. He was forthright in first demanding adequate share for the most dehumanized people, the untouchable, followed by fight for the backwards and other weaker sections of society. This priorities included breaking the social bondage of the untouchables from the Brahminical order followed by political independence. Mahatma Gandhi refused to consider both the separate electorates for the depressed classes as well as any form of special representation involving reserved seats. He said in the committee, “I do not mind the untouchables being converted to Islam or Christianity. I should tolerate that, but I cannot possibly tolerate what is in store for Hinduism if there are these two divisions set up in every village. Those who speak of political right of

46 untouchables do not know India and do not know how Indian society is today constructed. Therefore, I want to say with all the emphasis that I cannot command that if I was the only person to resist this thing I will resist it with my life.”44 Thus, Gandhi placed all the blame on the Divide and rule policy of the British Government asserting that the fate of these classes could be bettered by means of drastic legislation.

While Gandhi was not prepared for special safeguards in the nature of either separate electorate or even the reserved seats to the depressed classes, Ambedkar wanted future Constitution to give same means such as equal citizenship, fundamental rights for equality before Law and possession of equal civil rights and abolition of disabilities arising out of untouchability, free enjoyment of equal right, protection against discrimination, special departmental care and also representation of the depressed classes in the cabinet.45

After the Third Round Table Conference in 1932, the communal Award was announced under which the Mohammedan, Sikh and depressed classes would elect candidate by voting in separate communal electorates. The most important part of the Award, namely that relating to the depressed classes ran as follow:

“Members of the depressed classes qualified to vote will vote in a general constituency. In view of the fact that for a considerable period these classes would be unlikely, by the means alone to secure adequate representation in the legislatures, a number of special seats will be assigned to them. These seats will be filled by election from special constituencies in which only members of the depressed classes, electorally qualified, will be entitled to vote, any person voting in such a special constituency will, as stated above, be also entitled to vote in a

47 general constituency. It is intended that those constituencies should be formed in selected areas where the depressed classes are most numerous, and that, except in Madras, they should not cover the whole area of the province.”46

Against this communal Award Mahatma Gandhi undertook, fast unto Death. Ambedkar Compromised for the sake of Gandhiji’s life. As a result Poona Pact was born. To act as a compromise between the depressed classes and the Hindu community. It declared that the scheme of reservation of seats for the depressed classes out of general electorates in the provincial as well as in central legislature through election by joint electorates. It also declared about the representation to these classes in public services. The number of seats reserved for the depressed classes was increased to equal their proportion of population, with representatives being chosen in general, from both the community.

The Government of India Act, 1935 took, care of the development arising from Round Table Conference as well as the Poona Pact. The new chapter in our Social and constitutional history said good-bye to Manu and adopted the code of Modern Manu Ambedkar. The excluded got included. The expression Scheduled Caste which was first coined by Simon Commission was introduced in the Government of India Act, 1935. Under it the ‘Scheduled Caste’ replaced ‘depressed classes’ and separate list of scheduled Caste were notified for various provinces in 1936.

The First Schedule Part I Section 26 of Government of India Act, 1935 defined that the “Scheduled Castes means such castes, races or tribes or parts of groups within castes, races or tribes being castes, races, tribes, parts or groups which appear to His Majesty-in-Council to

48 correspond to the classes of persons formerly known as the “Depressed class” as His Majesty-in-Council may specify”.47 Under the Government of India Act, 1935 the proportion of seats was as follows: council of state, British India; Total membership-156 and Scheduled Castes-7; Central Assembly: Total membership-250 and Scheduled Castes-19.48

In 1942 the Government of India decided to fix a certain percentage of Jobs for the Depressed classes in order to give them necessary stimulus to equip themselves with better qualification in order to become eligible for post and services49. Several steps like age concessions, reduction in examination fees etc. were taken. In 1943, 8½ percent of job-reservation was provided for the Depressed classed and it was proposed to consider the question of raising this percentage as soon as sufficient number of qualified candidates were found available. However, the percentage of the Scheduled Castes population according to 1931 census was 12.75 percent. This reservation was applicable only in case of recruitment and not in case of promotion. In 1946, however, the percentage of reservation was raised from 8½ to 12½ percent corresponding to their population.50

The constituent Assembly had its first and second, meetings on 9th and 13th of December 1946, for making a resolution to provide constitutional reservations.

Dr. Ambedkar expressed the hope that given “time and circumstances, nothing in the world will prevent the country from becoming one.”51

After setting up of Advisory Committee, in the Constituent Assembly on January 29, 1947, Govind Ballav Pant land emphasis that “We find that in our country we have to take particular care of the

49 Depressed classes, the Scheduled Castes and the Backward classes. We must do all that we can do to bring them upto the general level and it is a real necessity as much in our interest as in theirs that the gap should be bridged. The strength of the chain is measured by the weakest link of it and so until every link is fully revitalized, we will not have a healthy body politic.”52

The Draft Constitution was prepared by the constitutional advisor in October 1947. It prohibited discrimination on the grounds of religion, race, caste or sex and assumed access to shops and places of public resorts and reservation of posts in favor of any class of citizens who, in the opinion of the state, were not adequately represented in the services under the state. The Draft Constitution as settled by the Drafting Committee headed by Ambedkar was submitted to the President of the Constituent Assembly on February 21, 1948. it was suggested that before the words ‘Class of citizens’ the word ‘backward’ should be inserted.53

On December 30, 1941, however, after taking into consideration the serious implications of reservations of seats for the minorities, at the meeting of Advisory committee, a resolution was moved to abolish reservations of seats to all minorities. It was done with a view to check the growth communalism in the country. However, the Constituent Assembly in its decision taken on May 25, 1949 retained reservation of seat in favour of the Scheduled Casts and Scheduled Tribes. Jawaharlal Nehru described this crucial decision taken in the Constituent Assembly as a “Historic turn in our destiny.”54

The importance of this policy K.T. Shah declared in the Constituent Assembly “This discrimination is in favour of particular classes of our Society, which owing to our unfortunate legacy of the past,

50 suffer from disabilities or handicaps. Those, I think ,many require special treatment and if they require it, they should be permitted special facilities for sometime so that real equality of citizens be established.”55

The entry of the Intermediate and backward caste group into politics and the struggle to dominate Congress party or assess a proper share in the structure of the party and the government were further established with achievement of Indian’s independence. In this way, the tools of the constitutional provisions regarding protective discrimination in favour of the backward classes goes back to the decade of freedom struggle, where, in fact, the freedom movement itself was strengthened by the “commitment on the part of the national elites to the welfare of the casts and tribes”.56

The era of emancipation of these depressed castes from the legacy of the past began with the advent of the British rule and major spokesman like Ambedkar and Mahatma Gandhi took keen interest in their affairs. But the real constitutional provision on it came since 1950, with special justice as the fundamental constitutional end. The constitution makers were fully aware of this fact and hence resolved, to constitute India into a Sovereign, Socialist Secular,57 Democratic Republic and inter-alia secure justice, social, economic and political as enshrined in the preamble. The Constitution is an instrument for social, economic and political transformation. It has therefore, provided in Article 37,58 under directive principles that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, economic and political shall inform all the institutions of the nation life. The state shall also strive to minimize the inequalities in

51 economic and ensure to eliminate inequalities in status, facilities and opportunities not only among individuals but also among groups of people residing in areas or engaged in different occasions. It has further been provided in Article 39,59 that the state shall direct its policy towards securing that citizens men and women equally have the right to an adequate means of livelihood, that the ownership and control of the material resources of the community are so distributed as best to subserve the common goal, and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment etc.

Article 16 alone controls the area of employment, offices and appointment under the state and preferences within this area must be within the scope of Article 16(4). This include judicial offices as well as administrative posts, but not elective offices. Article 16(4) covers not only preferences in initial recruitment into government services but also preferences in promotions within the services.60

The legal provisions are embodied in part XVI of the Constitution of India, which is entitled: “Special provisions relating to certain classes.”61 From these provisions it is evident that in 1950 the Constitution makers visualised need to make special provision only for the following classes:

Scheduled Casts and Scheduled Tribes; Anglo- Indian community; and Socially and Educationally backward classes. For these special categories of persons, the Constitution makers provided for different level and type of concessions. For the Scheduled Casts and Scheduled Tribes, under Article 330 and 33262 seats in Lok Sabha and Vidhan Sabhas were required to be reserved on the basis of their population. It was envisaged

52 that these reservation of seats would be available for a period of 10 years only. But with subsequent amendments to the Constitution, this period has been extended from time and these provisions are still in forces. For the Anglo-Indian community the facility of reservation of seats in the Lok Sabha was also provided to the extent to two seats by nomination by the President of India, in case he found that this community did not have enough representation. A similar provision was also made for the representation of Anglo-Indians to the Vidhan sabhas. However, there is no provision in Part XVI for representation of seats in legislature for socially and educationally backward classes.

The special provisions for other Categories under Part XVI relates to appointment to services and posts in connection with the affairs of the union or of a state for the scheduled Castes and Scheduled Tribes and the Anglo-Indian Communities. For the Anglo-Indian Article 33663 provides reservation in the railways, custom, postal and telegraph services of the union government on the same basis as they were available to them immediately before August 15,1947. These reservations, however, were to be reduced every two years by 10% and it was also envisaged that there should be no reservation for them from year 1960 onward.

Article 33564 of the Constitution of India provides for Scheduled Castes and Scheduled Tribes, that consistent with the maintenance of efficiency of the administration the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointment to services and posts in connection with the affairs of the union of the states. There was no cut off period of two years or ten years in the matter of recruitment of Scheduled Castes and Scheduled Tribes to the services and posts in the Constitution.

53 After Independence, out of the posts filled directly on an all India basis by open competitive examination, 12 ½% were reserved for SC. and 5% for ST. These percentages were raised to 15% to SC and 7-½% ST in 1970 of the post filled on an all India basis other than by open competition, 16-2/3% are reserved for SC and 5% for ST (raised to 7 ½% in 1970).

As regards the Socially and Educationally backward classes, now popularly called “OBCs”, the only special provision for them is under Article 34065 of Part XVI of the Constitution. In consonance with the provision of Directive Principles of State Policy, under Article 340 of the Constitution, provision has been made for the appointment of Commission to investigate the conditions of Backward classes which states that the president may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally Backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the union or any state to remove such difficulties and to improve their condition and as to the grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission. The provision under Article 340 is supplemented by Article 15(4) which state that nothing in this Article (Article 15 relates to prohibition of discrimination on ground of religion, race, caste, sex and place of birth) or Article 29(2) (Article 29 relates to protection and interest of minorities) shall prevent the state from any special provision for the advancement of any socially and educationally Backward classes of citizens or for the SC’s and ST’s.

In pursuance of the mandate contained in the Preamble, of the Constitution and the Directive Principles of State Policy, the Government

54 of India appointed the First Backward Classes Commission under article 340 on January 29, 1953 under the chairmanship of Kaka Saheb Kelkar. The Commission submitted its report on March 30, 1955. On the basis of criteria evolved by it the Commission listed 2, 399 castes as socially and educationally backward. It recommended various welfare measures for OBC’s including reservation in government services and educational institution. The central government did not accept the recommendations of the Commission on the ground that it had not applied any objective test for identifying backward classes.

When the Central Government changed in 1977, the backward classes problems received the attention of the Janata Party government, And the second Backward Classes Commission was appointed in December 1978 under the chairmanship of B.P. Mandal. The Commission presented its report to the President on December 31,1980. The Commission recommended the various welfare measures for the castes listed as socially and educationally backward by it.

Subsequently changes in the Government at the Center and National Front Government came into power at the Centre in December 1989. One of the promises in the manifesto of National Front was the implementation of Mandal Commission Recommendations.66 Hence the Government declared its decision on the implementation of some recommendations of Mandal Commission Report regarding reservations in employment on 7th August 1990.

After declaration of the decision of the Government there was a spate of reactions by people representing different walks of life. The decision of the Government to implement some of its recommendations in a participated manner agitated the minds of the Indian public,

55 particularly in the Hindu heartland. There was unprecedented loss of young lives and valuable property, which caused extreme distress, but the Government Showed non-paradoxable insensitivity towards the feeling of young people.

However the new Government of Congress (I) at the Center had given a new twist to whole of the issue by providing ten percent reservation to the poor among forward Castes and also by introducing an enconomical criteria to the OBC’s. This policy of the Government was stated in the affidavit submitted to the Supreme Court. The Court referred the Case to nine-judge bench and in a majority Judgement the Supreme Court upheld Job reservations for backward Classes in the central Government and declared valid the V.P.Singh Government order on 27 percent job quotas but struck down the economic Criteria inducted by the Narasimha Rao Government.

56 REFERENCES

1. Beteille Andre, Society and Politics in India, ed. 1991, p. 230. 2. V. Santosh Kumar, Social Justice and Politics of Reservation in

India: The Post-Mandal Phase, Mittal Publication, pp. 61-62. 3. The political parties in their electoral fights encourage socio-

economic inequalities and thus cause the inequalities to persist. 4. Thakurdas Frank, ‘In Defense of Social Equality’, The Indian

Journal of Political Science, Vol. xxxvii, No. 1, p. 1. 5. Barker Earnest, Principles of Social and Political Theory (London,

1967) p. 151.

6. Laski Harold J. A Grammar of Politics (London, 1951) p. 153.

7. Hayek F.A. The Constitution of Liberty (London, 1960) p. 87. 8. Ben S. and Peters R.S. Social Principles and Democratic State

(London, 1975) p. 119.

9. Russell Bertrand, Roads to Freedom (London, 1919) p. 111. 10. Bains Ravindar Singh, Reservation Policy and Anti-Reservationists

(New Delhi, 1994) p. 4. 11. Macpherson C.B., Democratic Theory: Essays in Retrieval

(London, 1995) p. 53.

12. Rawls John, The Theory of Justice (London 1972) p. 61.

13. Ben S., Peters R.S. op.cit. p. 133.

14. Laski Harold, op.cit. at p. 21.

15. Laski Harold, op.cit. at p. 114.

16. Nesiah Devanesan, Discrimination with reason? (1997) p. 30.

17. Id, at p. 31. 18. Dworkin Ronald, Taking Rights Seriously (London, 1977) pp. 223-

39.

19. Id, p. 227. 20. Reid Ivan, Social Class differences in Britain (London, 1989) p.

13. 21. Ibid. 22. Stone, Julius, Human Law and Human Justice (Bombay, 1965), p. 31.

23. Ibid. 24. Iyer V.R. Krishna, Social Justice and Undone Vast (New Delhi,

1991) p. 71. 25. Cunningham Clark D. and Menon N.R. Madhava, ‘Race, Class, Caste…? Rethinking Affirmative Action.’ Michigan Law Review,

Vol. 97, No. 5, March 1999. 26. Mata, :ermer Group Rights and Discrimination in International

Law, Martinus Nijhoff Publishers, Dordrecht, 1991, p. 163. 27. Singh Parmanand, Equality, Reservation and Discrimination in

India, Deep and Deep Publication, 1985, New Delhi, p. 80. 28. Singh Gopal and Sharma Harilal; Reservation Politics in India, Mandalisation of the society, Deep & Deep Publication, 1995, New

Delhi, p. 14. 29. Chelani K.S., ‘Caste Reservation and equality of opportunities in

Education EPN. Vol. xxv, No. 41, Oct. 13, p. 90.

30. Ibid. 31. Karnataka Backward Commission Report, Government of

Karnataka, 1975, p.100.

32. The Bombay Chronicle, 31 March 1924. 33. Sandandhiv D.N.; Reservation of Social Justice (Bombay, Current

Law Publishers, 1986), p. 24.

34. Padhy K.S. and Mahapatra Jayashree; Reservation Policy in India

(New Delhi, Ashish Publishing House 1988), p. 17.

35. Singh Parmanand, op.cit., p. 82. 36. Kamble J.R.; Rise and Awakening of Depressed Classes in India

(New Delhi, National, 1979), p. 69. 37. Padhy K.S. and Mahapatra Jayashree; Reservation Policy in India,

p. 18.

38. Ibid. 39. Ghurye; Caste and Race in India (Bombay: Popular Prakashan,

1979), p. 292.

40. Padhy K.S. and Mahapatra Jayashree; op.cit. p. 19. 41. Keer Dhananjay; Dr. Ambedkar: Life and Mission (Bombay,

Popular, 1962), p. 115.

42. Sandanshiv, op.cit. p. 7.

43. Ibid.

44. Padhy K.S. and Mahapatra Jayashree, op.cit., pp. 19-20. 45. Gwyer and Appadorai, Speeches and Documents on Indian

Constitution.

46. Padhy K.S. and Mahapatra Jayashree, op.cit. p. 20. 47. Mishra R.G. and Kaur Gurvinder; Reservation Policy and Personnel Selection (New Delhi, Uppal Publishing House, 1990),

p. 15. 48. Scheduled Castes and Scheduled Tribes Commission Report, 1951,

p. 23.

49. Ibid.

50. Constituent Assembly Debate, Vol. 1, p. 59.

51. Constituent Assembly Debate, Vol. 1, p. 333.

52. Rao B. Shiva; The Framing of India’s Constitution (Nasik:

Government of India Press, 1967), p. 3.

53. Constituent Assembly Debate, Vol. III, p. 330.

54. Constituent Assembly Debate, Vol. VII, p. 655. 55. Hebsur R.K., A Comparative study of four States in a Report submitted to the Backward Classes Commission, Vols. III to VII,

p. 143. 56. The words, “Socialist” and “Secular” were added by the 42nd

Amendment Act, 1976. 57. The Constitution of India (New Delhi Controller of Publications,

Ministry of Law & Justice, 1986), p. 14.

58. Id, p. 16.

59. Id, p. 18.

60. Ibid.

61. Ibid.

62. Ibid. 63. Mishra R.G. and Kaur, Gurvinder, Reservation Policy and Personnel Selection (New Delhi, Uppal Publishing House, 1990),

p. 39. 64. The Constitution of India (New Delhi, Delhi Controller of

Publications, Ministry of Law and Justice, 1986), p. 16.

65. National Front: Lok Sabha Election Manifesto, 1989, p. 36. 66. Singh Gopal, Reservation Politics in India, Mandalisation of the

Society, p. 23.

PART-II

CHAPTER-I

RESERVATION IS A WORLD PHENOMENON AS A MEANS FOR EMPOWERING DEPRIVED AND SUBJUGATED SEGMENTS OF SOCIETY

Democracies all over the world have always responded to the inequalities in the society by enacting legislations and incorporating equality clauses in their Constitutions Countries like India, United States of America and post-apartheid South Africa, among others have responded to such inequalities in a major way. At the outset, it must be mentioned that the enactment of such legislations, and even amendments to respective Constitutions were not an easy task for the proponents of equality. Each of these Countries has therefore, had a tumultuous history in the conceptualizing, developing, and finally legislating basic tenets of equality into the broader structures of their respective Constitutions.1

It is necessary that individuals should have an appreciation and knowledge of the development of law governing equality. The history of struggles that societies went through for bringing in equality, not only as a socially accepted norm, but also as a legally binding and enforceable order, has to be understood as a prerequisite to any such attempt, which would further, expand and broaden the furtherance of equality in all facets of life.

Legislations Affecting Affirmative Action in the United States:

Diverse methods and means were used while tackling the issues of discrimination and inequality by corrective laws for the last two centuries in the United States. In 1787, Article 6 of the US Constitution said that, “no religious test shall ever be required as a qualification to any office or public office or public trust under United States”2. In 1864, the passages of 13th and 14th amendments prohibited slavery and provided equal protection under law to all United States citizens. These amendments incidentally, were not followed by any law, or regulation for the enforcement of such provisions. The Civil Rights Acts promulgated between 1871-1886 did not provide protection against discriminatory acts committed by individual citizens, or by the Federal Government, but only against state activity. One of the most comprehensive Civil Rights legislation came in 1938 as ‘The Fair Labor Standards Act of 1938’, and covered minimum wages, overtime compensation, child labour, employer record keeping and other provisions related to employment.

Beginning with President Roosevelt in 1940, and for the subsequent 15 years each President issued Executive Orders aimed at the elimination of the discrimination in Federal employment. In 1940, Executive Order 8587 was the first-ever Presidential Order to principally state that public employment cannot be denied on the basis of race, creed, or color. In 1955, the Presidential Executive Order 10950 introduced the concept of ‘Equal Opportunity’. Further, it was President Kennedy’s Executive order 10925 in 1961 that introduced the concept of ‘Affirmative Action’.

But, it was not until the enactment of the Civil Rights Act, 1964 that provided a comprehensive legislation under the law to protect and

enforce against discrimination. The Title VII of the Act makes it unlawful for an employer employing 15 or more employees to discriminate in all practices, conditions and privileges of employment because of race, sex, colour, religion and national origin. This Act also created an Equal Employment Opportunity Commission (EEOC), as an administrative body or agency to administer, and to enforce the statutes concerning discrimination in employment in the private sector.3

Till now, the evolution of legislation in the United States was harping only on the employment in the Federal Government, but with the enactment of the Civil Rights Act 1964, the private sector also came under the purview of the legislation and scrutiny. The provisions of this Act were later applied to Federal employees through Executive Orders.

The Executive Order 11246 in 1965 placed the responsibility on the government to assure equal opportunity, and the Executive Order 11375 in 1967 added sex discrimination in Federal employment as a prohibited action. Interestingly, at that time the employees in the private sector had wider opportunities to redress their grievances than even the Federal Government employees.

In 1969, the Executive Order 11478 also called the ‘Philadelphia Order’ expanded the role of the Equal Employment Opportunity Commission, and also defined specific activities constituting affirmative action.

The Civil Rights Act, 1964 was amended in 1972 following a Supreme Court judgement, and was further amended in 1991. The Equal Employment Opportunity Act, 1972 placed public sector employees and agencies under the purview of Civil Rights Act, and all the personnel related actions in the Federal Government were to be ensured that they

were not only free from discrimination, but were also oriented towards equality of opportunity.4

The entire evolution of affirmative action laws in the United States was not free from judicial intervention and interpretation. The laws evolved taking into consideration the decisions of the Supreme Court of United States.

Federal Contract Compliance in the United States:

The President Executive Order 11246 of 1965, and the pursuant Executive Order in 1970, were directed to promote equal employment opportunity, and practices by private firms who have contracts with the Federal Government Under this, the Office of the Federal Contract Compliance Programmes (OFCCP), Department of Labour, was made responsible to implement and enforce the Executive Orders, related laws banning discrimination, and establishing affirmative action requirements for the Federal contractors and sub-contractors.

The OFCCP was required to implement goals for hiring and promotion for the socially disadvantaged sections as an affirmative action programme, and the contractors therein, were liable to develop or to implement the goals as defined by the OFCCP. Under this programme, promotions were not involved, and specified quotas were prohibited. The private firms who had contracts with the Federal Government were directed to develop and maintain written affirmative action programmes. Under the section 209 (A) of Executive Order 11246, the penalties for failure by a Federal contractor or sub-contractor to comply included termination of the Federal Government contracts, and debarment from future Federal contracts.

Simultaneously, as per the Civil Rights Act, every employer with fifteen or more employees was bound to submit an annual ‘Standard Form 100’, providing the details of race and gender of the employees under the various job categories.5

Legislations Affecting Equality and Affirmative Action in South Africa:

The post-apartheid South Africa gave itself a new Constitution, and enacted two crucial legislations with regards to affirmative action, namely, the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, and the Employment Enquiry Act, 1998. The former defines grounds on which discrimination such as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth is prohibited. It also prohibits discrimination based on systemic disadvantage, as discrimination undermines human dignity, and adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner. The Act further prohibits hate speech, harassment, dissemination and publication of unfair discriminatory information that unfairly discriminates. In the Act, the burden of proof lies with the accused. The Act also provides for ‘Equality Courts’ for implementation of the legislations.6

The latter Act contains a number of provisions providing for affirmative action against unfair discrimination, employment equity plans, training, reporting by employers, and income differentials, etc. The employment practice includes recruitment, job classification, remuneration, employment benefits and terms and conditions, promotion

and dismissal. The Act applies to all employers, both public and private sectors, and provides for a file for discrimination.7

PART-II

CHAPTER-II

SURVEY OF RESERVATION POLICY AS OPERATIVE TOOL TO EMPOWER IN A FEW SELECTED DEVELOPED AND DEVELOPING COUNTRIES

There is a growing awareness among the victims of discrimination and inequality, as well as a segment of the ruling elite to assess the impact of affirmative action in other countries, so as to learn lessons for our specific situation. In this regard, it needs to be stated here that in Northern Ireland ‘sectarianism’, in America ‘race’, in Malaysia ‘control by outsiders’, and in India ‘caste’, and ethnic principles and practices lead to discrimination. Hence, these countries have opted for affirmative action as a remedy to remove obstacles imposed by discrimination and inequality. This section briefly assess the success in transferring affirmative action principles into concrete situation.

It is frequently asked whether preferential policies are necessary in countries, which have laws against, discrimination, or which have attained formal equality. Nesiah of the view that “laws against untouchability, segregation and discrimination are essential, but they cannot possibly eliminate the impact of prejudice, or compensate for group disabilities caused by environmental or historical circumstances, or otherwise ensure the achievement of equal opportunity as between individuals. The structural obstacles to mobility may be most formidable where there has been a long history of prejudice, discrimination and exclusion sanctioned by law or religion as in the case of Blacks and

Native Americans in the USA, Dalits and Tribals in India, and women everywhere. Even, if the legal and ideological basis of discrimination and exclusion can be overcome, prejudice and psychological conditioning may continue to hinder progress for a long period.”8

Goldman’s believes that “affirmative action programme seek to rectify the consequences of social discrimination. It involves, among other things, discrimination in favour of communities that have been victimized by society and in law. Although, policies involving reservations and quotas for members of disadvantaged communities has been the most widely used, and also the most hotly contested, policy within the affirmative action programme, it is by no means the only way of remedying the socially victimized communities. Under the affirmative action programme, governments have sought to supplement positive discrimination in jobs with special economic packages, social facilities and preferential spending”.9 Reservation pegged the quantum at 15 percent for the SCs, and 7.5 percent for the STs. The question today is how to ensure that this provision is put into practice in its totality.

Let us briefly review the policy of affirmative action as practiced in the Indian context and in the context of the United States of America. On a comparative note, Thomas Weisskopf states: “India and the US are in many obvious ways very different. In some important respects, however, the two nations are similar. Both have functioning democratic electoral systems and are Constitutionally committed to preserving civil liberties and individual rights. Both have multicultural populations including significant minorities with a long history of deprivation and disadvantage. And both have sought to address the needs of these minorities via certain forms of positive discrimination, generally labeled ‘reservation policies’ in India and ‘affirmative action’ in the US. The policies of positive

discrimination in favour of the disadvantaged groups, enacted initially with strong public support, have proven increasingly controversial in both India and the United States. In each country, the debate over these policies has become sharper, as participants wrestle with the inherent tension between the individual right to equal treatment and the societal goal of overcoming profound inequalities of opportunity.”10

Implementation of Preferential Policies

USA India Malaysia

Legislative No explicit A vital part of the Malay Special prescription of prescription, but Constitution since Rights embodied in preferential policies preferences are its promulgation in the 1957 implicitly 1949 is its Constitution and permitted, in terms prescription greatly of the Civil Rights strengthened by the Act, 1964 1971 Amendment

Enforcement EEOC and OFCCP Virtually nil. The Several specialized mechanism established Commissioner SC agencies backed by specifically for this and have no powers virtually the entire purpose of enforcement political and administrative hierarchy

Access of protected Satisfactory in Mostly Very satisfactory groups to the some regions, unsatisfactory, administration unsatisfactory in especially at lower others levels

Orientation of the Positive in some Mostly negative Strongly positive

public services to regions, negative in preferential policies others

Access to the Satisfactory in Mostly Very satisfactory political system some regions, unsatisfactory unsatisfactory in except in tribal others areas

Orientation of the Mostly satisfactory At best moderately Highly supportive political leadership up to the 70s, less supportive except to preferential satisfactory in in the case of SC policies many regions since and ST legislators then

Access to judicial Fairly satisfactory Poor on account of Unnecessary as remedies poverty, illiteracy political and and the lack of administrative support from the remedies are local police and readily available lower administration

Orientation of the Was once very Has been mostly Has been judiciary to supportive but is supportive supportive preferential policies now less so

Character of Mostly Civil Rights Mostly informal Mostly political relevant non- organization, e.g., lobbies of national parties governmental NAACP etc. and state legislators bodies

Problems in listing Increasingly There are national Negligible protected groups complex on and state lists but account of new these are too big immigration as pruning the lists

well as the upward has been politically mobility of several very difficult minority groups

Problems in Increasingly Has been relatively Negligible identifying group complex on easy, but gradually affiliation account of becoming less to miscegenation and difficult on account lack of records of mobility in the regarding ethnicity urban areas

Other problems in Lack of economic The rural areas, in Minimal targeting opportunities in which the bulk of preferential policy those parts of the the SC population benefits major cities which live, are virtually are occupied by the outside the reach of ‘underclass’ most preferential policies

Barriers to Vary according to Formidable on Virtually termination the region. Some account of the insurmountable barriers have been Constitutional breached provisions and the lobby of SC and ST legislations

Source: Devanesan Nesiah, Discrimination with Reason? The Policy of Reservation in the United States, India and Malaysia, Oxford University Press, Delhi, 1991, pp. 272- 74.

One marked difference in the legal provisions of these countries is that in India discrimination is Constitutionally prohibited, but within this broad framework, protective discrimination is exercised in favour of the weaker sections. “In the US the term ‘affirmative action’ initially meant

not reserved seats, nor any other kind of positive discrimination, for disadvantaged groups. Rather, it meant a systemic and aggressive effort to root out negative discrimination by ensuring that information, opportunities and access in the spheres of education and employment would be made available to under-represented minority groups on the same basis as they were to the majority White population. The major part of US government legislations linked to affirmative action was the 1964 Civil Rights Act. Based on the Equal Protection Clause of the US Constitution, this Act was designed to ensure that all Americans – regardless of race, colour or creed-would be guaranteed equal opportunity.”11 Thus, while in the US any form of discrimination is ruled out, in India, Constitutional measures are counter posed to the view, which holds any preferential treatment as ideologically illegitimate.

Devanesan Nesiah in his inter-country study, “Discrimination with Reason? The Policy of Reservations in the United States, India and Malaysia”, brings out the debate into focus. “A more serious problem at the heart of the affirmative action dilemma relates to the realm of culture. A share of the persistent differences in achievement between different ethnic groups can be attributed to past and present discrimination, structural factors, and other causes beyond the control of the handicapped individual or the disadvantaged ethnic groups. But, it appears that a significant share of the disparity in achievements may be caused by cultural characteristics. This is an important part of ‘background inequalities’ – attributes, which are not racial but may, at a particular time and in a particular locale, appear to be race-correlated.”12

American affirmative action relates to compensation for handicaps on account of ethnicity and gender. In the case of Native Americans, affirmative action extends to tribal rights within reservations. Indian

‘protective discrimination’ extends even further to benefits based on domicile in a specific state or region. Malaysian ‘Bumiputra’ policies are based exclusively on ‘race’. In all three societies, there are deep class divisions (in the Indian situation it would be caste divisions), which are at least as important as ethnicity or gender in explaining differences in the socio-economic levels.13 Further, in US, the Blacks are considered separate but equal. In contrast to this in India, the SCs and STs are considered separate and unequal/inferior. Compared to this in Malaysia, the Bumiputras are considered to be the special citizens, and hence given special rights.

The USA, India and Malaysia are among those countries, which have clearly articulated nation-wide policies, backed by appropriate legislations. Many more, e.g., Sri Lanka, have preferential policies of a more limited scope: perhaps applicable only to some level or sector or region. Others, e.g., South Africa and Namibia, are currently in the process of formulating schemes of preferential policies to be introduced nation-wide.14

REFERENCES

1. Thorat, Sukhdev: Reservation and Private Sector Quest for Equal opportunity and Growth, Indian Institute of Dalit Studies, New Delhi, Rawat Publication , 2005,P.378

2. Article 6 of the Constitution of United States of America, 1787.

3. Civil Rights Act, 1964.

4. The Equal Employment Opportunity Act, 1972.

5. Supranote 3 6. Promotion of Equality and Prevention of Unfair Discrimination

Act, 2000.

7. The Employment Enquiry Act, 1998. 8. Nesiah Devanesan. Discrimination with reason? The Policy of Reservation in the United States, India and Malaysia. Oxford

University Press: Delhi, 1997, p. 277. 9. Mahajan, Gurpreet. Identities and Rights: Aspects of Liberal

Democracy in India. Oxford University Press, Delh, 1998, p. 143. 10. Weisskopf Thomas E.. “Consequences of Affirmative Action in US Higher Education: A Review of Recent Empirical Studies.” Economic and Political Weekly. Vol. 36 (51) December 22, 2001,

p. 4719.

11. Id, 4720. 12. Nesiah Devanesan: Discrimination with reason? The Policy of Reservation in the United States, India and Malaysia. Oxford

University Press: Delhi, 1997, p. 7.

13. Id, p. 8.

14. Id, p. 266.

74 PART III

CHAPTER I

SCRUITINY OF LEGISLATIVE PROVISIONS ENSURING RESERVATION DURING BRITISH REGIME

Legislations regarding ‘reservation’ could be traced back to the colonial period. By the middle of 19th century there emerged reformers in many parts of India. One such reform was the by-product of proselytizing the natives especially the depressed classes by the Christian missionaries. This might have inspired the Hindus to effect social reforms or they might have felt ashamed to have such practices as caste discrimination. Consequently there were such moderate reform movements in many parts of the subcontinent. For instance a movement was started in the Madras Province in 1852.1 In 1858 the Government of Bombay Presidency declared that ‘all schools maintained at the sole cost of Government shall be open to all classes of its subjects without discrimination. But this policy was hardly enforced. For instance a Mahar boy was refused admission and the Bombay Education Department justified the action of the school by saying that ‘it would not be right for the sake of a single individual, the only Mahar who had ever yet come forward to beg for admission into a school attended only by pupils of higher caste, to force him into association with them, at the probable risk of making the institution practically useless to great mass of natives.’2 By 1923, the same Government decided to cut off aid to educational institutions that refused admission to members of the Depressed Classes.3 But often the reform movements addressed issues, which were considered anachronistic and superstitious. The reform movements were concerned

75 not with the evils of caste system as such, but of broader social issues like widow remarriage and education of women and opposition to child marriage. As Galanter says they are issues, ‘which reflected higher caste practices, and options’ Caste system as such was not challenged.4 Some authors tried to discover ‘Brahminism’ as the root reason for the discriminatory behavior.

Jyotiba Phule, a social activist felt the necessity of reforms within the Hindu fold. In 1860 he called attention to the deplorable condition in which the depressed classes lived and also the discriminatory treatment meted out to them. In 1858, the Government of Bombay Presidency (present Maharashtra and Gujarat were parts of it) declared that ‘all schools maintained at the sole cost of Government shall be open to all classes of subject without discrimination.’ During that time the British Government took a serious view of the question of depressed classes. In 1880s, the British administration set up scholarships, special schools and other beneficial programmes for the Depressed Classes. The progressive minded Princes in the native states like Baroda, Kolhapur, and Travancore took similar initiatives.5 Tracing the historical evolution of the policy of reservation, the Committee on the Welfare of Scheduled Castes and Scheduled Tribes stated:

Realising the inequatious distribution of posts in the administration between different castes and communities, the rulers of some of the then princely states, who were genuinely interested in the upliftment of disadvantaged sections of the society, took initiatives and introduced reservations in the administrative posts in favour of backward castes and communities in their States as early as in the first quarter of 20th century. Mysore and Kohlapur were amongst the first to do so. Because of the movement for social justice and equity started by the Justice Party, the

76 then Presidency of Madras initiated the reservation in Government employment in 1921.It was followed by the Bombay Presidency comprised of the major portion of present states of Maharashtra, Karnataka and Gujarat.Thus the first quarter of the 20th century saw reservation in Government employment in almost whole of South India.6

The census of 1910, classified the population into (a) Hindus, (b) Animists and Tribals and (c) The Depressed classes. Thus the plight of the depressed classes was addressed for the first time.

Eight years later in 1918, the Maharaja of Mysore, having received a petition from the depressed class people, appointed Miller Committee to go into the question of adequate representation of non- Brahmin communities in the services of the State. When the first World War started in 1914, the Britishers began to pay more attention to the war. And, perhaps to elicit the support of the people in India Britain thought about some Constitutional reforms. In the political History of India an association in Madras Province initiated representation to the depressed classes. There was also a strong public opinion in favour of this demand. A minute of dissent by Sir C. Sankaran Nair clearly reflected this trend in the political atmosphere of that time. According to him, “the non-Brahmin and depressed classes have awakened to a sense of their political helplessness and to their wretched condition, and no longer contend to rely upon the Government which has left them in this condition for the past hundred years, claim a powerful voice, in the determination of their future.”7 Thus increasing political awareness among the non-Brahmin Classes and Britain’s need to have Indian people’s cooperation in war efforts prompted the British rulers to adopt a policy of encouraging the ‘gradual development of self-governing

77 institutions with a view to the progressive realization of responsible government in India as an integral part of the British empire.’8

After studying the views expressed by various organizations in India, it was decided to provide representation in the Provinces Assemblies and the Central Legislative Assembly. In the provinces ruled by the British a systematic attempt for the betterment of the Depressed Classes was started with the introduction of Montague-Chelmsford Reform incorporated in The Government of India Act, 1919.A demand for the adequate representation in the legislatures was justified on the ground that the depressed classes were subjected to the intellectual and cultural domination of Brahmin priest class.9

A significant Political Movement in Madras Province

In fact the non-Brahman movement had organized into the South India Liberal Federation in 1916. Later on it came to be known as Justice Party after the name of its English newspaper, edited by T.M. Nair, a physician by profession. “As a first step, the party agitated for reserved seats for non-Brahmins in the legislative councils,ushered in by the Montague- Chelmsford Reforms.”10 The main objective of the Justice Party was getting communal representation in the Government offices.

In reply to a question raised in the Madras legislative Council in the year 1914 it was answered that the total of registered graduates of the Madras University was 650 out of whom 452 were Brahmins, 12 non- Brahmin Hindus and 74 belonged to other communities. The Madras legislative Council, the Senate of the Madras University and other local and public bodies composed of a large number of Brahmins and the non- Brahmins had hardly a chance of entering these bodies. Out of the 128

78 permanent District Munsifs in1919, 93 were Brahmins, 25 non-Brahmin Hindus and the rest consisted of Muslims, Indian Christians and Anglo- Indians. Out of 1007 Gazetted posts 609 were filled with Brahmin as against 398 posts held by non-Brahmins, Muslims and Christians. Out of 17,225 clerical posts 9813 were held by Brahmins…11

Moreover not a single non-Brahmin was elected to the Legislative Council during the first three decades since it started functioning in 1882 when it was started to 1917. Thus it was no wonder that when under the Government of India Act 1919 elections were held the Justice Party came out successful and formed ministry. The Indian national Congress had not participated in the elections. It was this Government of Madras that introduced what was later termed as ‘Communal G.O…’12

It was after the Act of 1919 that the Scheduled Castes, popularly known as depressed classes became a ‘political entity’ for consideration in future set up of constitutional reforms. A thorough examination of the Report of the thirty second Indian National Congress shows that the Congress has mustered enough strength to pass a resolution to urging the people of India to remove all disabilities that were imposed by custom upon the depressed classes.13

In Madras Province Periyar E.V.Ramasamy spearheaded the non- Brahmin Movement. He declared that ‘communal justice’ was only a means to an end and the end would be casteless society. Periyar E.V.Ramasamy broke with the Congress in 1925 on the issue of dominance of Brahmins within the Indian National Congress in the Madras Province and started the Self respect Movement with a view to bringing about all round change in Tamil society.”14 So with the positive urge to protect the rights of depressed classes, there emerged the negative force of anti-Barhminism. Often casteism was identified with

79 Brahminism and due mainly to the impact of Western ideals of equality and socialism the non-Brahmin, if not anti-Brahmin, movements emerged in different parts of India.

The Government of India Act 1919 had a provision that a statutory Commission would be appointed after ten years to report on the matter of establishing a responsible government in India in keeping with this provision, the British Government appointed Simon Commission. The Commission did not have any Indian member in it and was ‘all-white’ one, in spite of protest from the Indian National Congress and Gandhi the Commission toured every Indian province. The Commission went through memoranda from Government of India, from Committees appointed by the provincial legislative councils and from non-official sources. Obviously the final report contained recommendations for reform. One of the recommendation was the need to safeguard the minorities and other depressed classes of people. The report of the Commission focused the issue of the depressed classes not only as a social issue of caste, but also as an issue with serious political ramifications. The Commission was of the opinion that the uplift of the depressed classes depended on their gaining political influence, if not participation in the governmental processes. Obviously the representatives of the depressed classes were to be present in the legislature. Many provinces like Bihar and Orissa suggested they would opt for ‘nomination’ because the depressed classes were too backward to choose their own representatives. But the Commission did not favour this idea for it felt that depressed classes needed opportunities for getting used to ideas and practices of self government.

80 PART III

CHAPTER II

IMPACT OF FREEDOM MOVEMENT ON RESERVATION POLICY

The depressed classes demanded a separate electorate, But the Simon Commission did not favour this. However the Commission was not against reserving seats for them. The Commission recommended to reserve seats for the depressed classes in general constituencies and these seats would be filled by election in which both depressed classes and others would participate.

In 1923 the government decided not to give grants to those aided schools that refused admission to the children of the depressed classes. In 1928 Government of Bombay set up a Committee under the chairmanship of O.A.B. Starte to identify the Backward Classes and recommend special provisions for their welfare. In the meanwhile under the leadership of Ambedkar the Depressed Class people had begun to articulate forcefully their demands. The Simon Commission, which came to study and make recommendations for Constitutional reforms held negotiations and consultations with different groups of people. The representatives of the ‘untouchables’ participated in them. In the words of Galanter, “Dr. Ambedkar, by this time recognized as an important spokesman, appeared before the Commission to demand reserved seats for the untouchables in legislative bodies, special educational concessions, and recruitment to Government posts recommendations substantially accepted in the Commission’s report.15

81 He argued:

‘The depressed classes in India present definite problem in political and social evolution. They are the resultants of historical forces, religious, economic and social. They are the embodiment of exploded (sic) social ideas and the disabilities imposed on them by the original framers of Hindu polity have been aggravated by long centuries of segregation and neglect. The origin of these classes and the beginning of their woes rightly belong to the domain of historical research but their betterment, economic and educational, is an imperative problem. Their class- consciousness is growing, stimulated partly by the sympathy of the Government and partly by the belated awakening of the Hindu social conscience.’16

In the Report submitted in 1930 backward people were categorized: (a) Depressed Classes, (b) Aboriginals and Hill Tribes and (c) Other Backward Classes. But there was stiff opposition to the recommendations of the Simon Commission Report. Therefore the British Government convened a Round Table Conference in November 1930, to which delegates from different parties and interest groups were invited. Unfortunately the Indian National Congress, which claimed that it was the only organization that truly represented the people of India, did not participate for it was engaged in The Civil Disobedience Campaign against the Government. Though Gandhi, the unquestioned leader of the National Movement, was opposed to any kind of reservation, later changed his position and conceded to setting up separate electorates to religious minorities like Muslims, Sikhs and Christians. But he opposed vehemently separate electorate for the ‘depressed classes’.17 The Round Table Conference ended in failure. Subsequently the British Government appointed Lothian Committee in December 1931, to formulate a system

82 of franchise whereby all sections of the people would be represented in the legislature. The Committee was specifically required to’ investigate the need, justification and methods to ensure adequate representation for the Depressed Classes.’ As one writer observes:

The Hindu members of the Lothian Committee, the members of the provincial Franchise Committees, and the Hindu witnesses in several provinces conspired to minimize the number of untouchables. Perjuring themselves, the witness denied the existence of untouchables in their province. In the united Province, for example, the Franchise Committee reported the number of untouchable as just 0.6 million as against the 1931 (census) figure of 12.6. In Bengal the Franchise Committee figure was 0.07 million whereas the census figure was 10.3 million. Before the RTC the census figures of the untouchables had not been challenged. When the upper castes found that the untouchables would get representation and facilities based on their population, they resorted to lies to deny the existence of untouchables. Is not such a calculated conspiracy to deny the right of the untouchables going on in different forms even today?18

Simon Commission Report and After:

In 1931, six months after the publication of Simon Commission Report, a Round Table Conference was convened in London to review the Commission’s Report and how a new Constitution for India could be worked out on the basis of the recommendations of the Commission. Ambedkar and Rao Bahadur Srinivasan represented the Depressed Classes in this Conference.

The focus of the Conference was the position of minorities in the future structure of Government in India. Ambedkar and Srinivasan

83 demanded separate electorate and adult franchise. But the separate electorates were not to be a permanent feature. But the discussion went on without reaching an agreement. Subsequently there was convened the Second Round Table Conference. This time Gandhi also participated; but he vehemently opposed to the system of separate electorate for the Depressed Classes. He criticized the separate electorate as a devise of the British strategy of ‘divide and rule’

The Franchise Committee of the Conference was unable to reach an agreement on the representation of minorities. Thus the then Prime Minister of Britain Ramsay Mac Donald was authorized to make an award, announced in August 1932, it ‘granted their demand for separate electorates in areas where they were concentrated in addition to regular votes they would cast as members of general electorate.’19 The award proclaimed:

Members of the depressed classes qualify to vote, will vote in general constituency. In view of the fact that for a considerable period those classes would be unlikely by the means alone, to secure adequate representation in the legislature, a number of special seats will be assigned to them…These seats will be filled by election from special constituencies in which only member of the ‘depressed classes’, electorally qualified, will be entitled to vote. Any person voting in such special constituency will, as stated above, be also entitled to vote in a general constituency. It is intended that these constituencies should be formed in selected areas where the depressed classes are most numerous and that except in Madras, they should not cover the whole area of the province.20

84 The Poona Pact:

Gandhi was opposed to this award.21 After a month he started a fast unto death to resolve the issue of representation of depressed classes of people in the Assembly. A modern historian writes:

…his (Gandhi’s) friends as well as his opponents wondered why he chose this particular issue for so terrifying a tactic, since it seemed directed more against the untouchables than the British Government. Gandhi considered this issue central to the very survival of Hinduism. However for that reason he was willing to concede more reserved seats to Ambedkar for his party than the British had done. All he asked was that the depressed classes should not think of themselves as members of any religious community but Hinduism.”22 Gandhi openly declared, “I believe that if untouchability is really rooted out it will not only purge Hinduism of a terrible blot but its repercussion will be world wide. My fight against untochability is a fight against the impure in humanity.”23

The mediators between Gandhi and Ambedkar put in their effort and both of them met at Yervada jail where Gandhi had been a prisoner of the British Government. It was here that he started his ‘fast unto death’ against the separate electorate for Depressed Classes. Now the responsibility of saving the life of Gandhi fell on all sections of Indians. But Ambedkar has a different opinion. It did not seem that Ambedkar at first took the fast of Gandhi seriously. On 19 September 1932, he issued a statement focusing on the following points:

1. Why should Gandhi stake his life on a relatively small issue as the communal question?

2. Why were the Depressed Classes singled out whereas at the RTC Gandhi opposed special rights to all except Muslims and Sikhs?

85 3. His conscience was not aroused if the nation was split by the arrangement of special electorates for classes communities other than the depressed classes-Why?

4. If there was any class, which deserved special political rights, it was the depressed classes.

5. The only path for the depressed classes to succeed in the struggle against organized tyranny was a share in political power.

6. The Mahatma staked his life to deprive the untouchables of the little they got.

7. The Communal Award itself was a compromise between the two principles of separate electorates and joint electorates.

8. At the time of RTC the Mahatma was opposed to any system of special representation to the Depressed Classes even in a system of joint electorates.

9. Gandhi had suggested a convention-based scheme under which the losing untouchable candidate would obtain a court verdict that he was defeated because of untouchability and continue to contest and keep on getting court verdicts ad infinitum.

10. All Mahatmas had failed in the mission of removing untouchability and absorbing the depressed class.

11. Reformers who preferred to sacrifice principles at movements of crisis rather than hurt the feelings of their kindred could not be trusted by the depressed classes.

12. The Mahatma’s fast would result in acts of terrorism by his followers against the depressed classes.

86 13. Gandhi’s fast was releasing reactionary forces and fostering hatred.

14. If the Mahatma did not want hatred reaction and terror to spread on a large scale, he should reconsider the decision to fast unto death.

But Gandhi viewed the Award ‘an attack on Indian unity and nationalism and harmful to both.’ But that time Gandhi had become hero of millions in India and even the depressed class leaders like M.C. Raja thought it their duty to save the life of Gandhi. Hence the mediators between Ambedkar and Gandhi actively intervened and at last Ambedkar agreed to meet Gandhi at Yervada prison. After much haggling they reached an agreement.

According to this historic agreement depressed classes would get 147 seats in the provincial councils instead of 71 promised in the Ramsay MacDonald’s award. The Depressed classes could get 18% of the seats in the Central Assembly also. The British Government accepted this agreement between Ambedkar and Gandhi and incorporated it as an amendment to the Communal Award of the Prime Minister of Britain. Subsequently Gandhi ended the fast and the following week was celebrated as Untouchability Abolition Week.24 It seems that Gandhi knew the rising political awareness among the backward classes and depressed classes. These developments reflected in the next Constitutional document namely Government of India Act 1935.

The Government of India Act 1935 replaced the term ‘depressed classes’ with ‘Scheduled Castes’.25 Accordingly separate lists of Scheduled Castes were notified for various provinces in 1936. The Act also defined races or tribes which appear to His Majesty-in-Council to correspond to the classes of persons formerly known as the depressed

87 classes as His Majesty-in-Council may specify’. Even though seats in the legislature were reserved both for the ‘minority’ communities and for the ‘depressed classes’, reservation in the public service was denied to the ‘depressed classes’, whereas the minority communities enjoyed ‘reservation’ in the public services. The reason stated for this was: “In the present state of general education in these classes the Government of India considers that no useful purpose will be served by reserving for them a definite percentage of vacancies out of the number available for Hindus as a whole, but they hope to ensure that duly qualified candidates from the depressed classes are not deprived of their opportunities of appointment merely because they cannot succeed in open competition.26

Reforms by the Monarch:

Lord Curzon on his visit to Travancore in 1900 said, obviously having a reference to the memorial detailing the grievances of the Ezhavas that “in the history of States no rulers are more esteemed by posterity than those who have risen superior to the trammels of bigotry and exclusiveness and have dealt equal mercy and equal justice to all classes…including the humblest of their people.” T.K. Ravindran adds, ‘The Maharaja of Travancore was quick to act on the advice and a wave of reforms followed. But his officers were not ready to do away with the customary rules and that is why the schools declared open to lower castes still remained virtually inaccessible to them.27

It would not be right to say that the Travancore Government was not responsive to the demands of the backward classes. There are many occasions as when a representative of Ezhava community Kumaran Asan,the famous Malayalam poet, thanked the Government of Travancore for admitting the students belonging to depressed classes in

88 Government institutions. For instance Asan ‘thanked the Dewan for showing special attention in redressing the educational grievances of the Ezhavas…’28

Gradually Communities other than Nairs,Kshatrias and Brahmins began to organize themselves.29 These Memorials demanded representations in the administration and in the popular Assembly.

Communal Representation in Administration

‘Communal Representation’ was as issue discussed in the Sree Moolam Popular Assembly as far back as 1925.The then Chief Secretary of the Government of Travancore explained the inability of the Government to give representation to each and every small community At the same time the Chief Secretary placed before the Government certain broad principles regarding recruitment to public service. Weaker sections of the Travancore population were given representation even in the not so democratic Sri Moolam Popular Assembly (Sree Moolam Praja Sabha).30

Again this issue came up before the Assembly in the form of a cut motion on the budget in August 1929. The Government then appointed a Committee consisting of other official and non-official members. In September 1933 this Committee submitted its report that came up for discussion in the legislature in May 1934. Subsequently the Government realized the importance of the matter and hence decided to study all aspects of the issue. The Government thus appointed, Dr. G. D. Knox, a former Judge of the High Court of Travancore, to examine all available material and make a report on the principles to be observed, in laying down Government’s policy. Based on the report, Government subsequently issued an Order on 25th June 1935.31

89 The Communities other than Nairs and Brahmins considered themselves isolated from the administration. The feeling made them unite against the Government, which was alleged to be dominated by dictates of the Dewan. The aggrieved communities came together to form a common political platform that came to be known, as Joint Political Conference later became Joint Political Congress.32 One of the demands of the Joint Political Congress was to have due representation of aggrieved Communities in the posts in Government services. With statistics the aggrieved communities argued for their cause. Thus reservation of posts in the Government service was a significant platform for the political movement in the erstwhile Travancore to come together.

Constitutional Experiments and Communal Representation:

Travancore had a debating body called the Travancore Legislative Council established far back in 1888 and the Sree Moolam Popular Assembly in 1904. Even after the demise of Sree Moolam Thirunal, the Constitutional experiments continued and in 1933 a bi-cameral legislature came into existence namely Sri Mulam Assembly, the Lower House and Sri Chitra State Council, the Upper House. There emerged the question of due representation to different communities in this body, which became a vociferous demand. It is interesting to note that the Indian National Congress had only a negligible influence in the State. Since 1935 alleged autocratic rule of the Travancore Dewan (incidentally the Dewan Sir. C.P. Ramaswamy lyer, was a Tamil Brahmin lawyer and former member of Indian National Congress) became the core issue that united all Communities. For the time being forgetting the communal differences, politically conscious people came forward to form the Travancore State Congress. Popular figures form among the Nairs also joined the

90 movement which gave it an all-community color. However, it was dominated by the former organization namely JPC. The political scene of the pan Indian politics was charged with the sentiments of anti- colonialism and in Travancore it was anti-Dewan. Since 1937 when Travancore State Congress was formed this struggle against the Government had been going on.

In 1947 the British left Indian subcontinent. But as soon as the colonial rule ended and subsequently democratic institutions too replaced the princely rule, the question of caste and community emerged as the most significant factor in deciding policy matters including the formation of ministries. Each community being organized and capable of acting as effective pressure groups, reservation in principle was something of a political reality to be reckoned with. Even the first ministry in the erstwhile Travancore represented three dominant groups. In the opinion of a contemporary political activist as the first ministry did not represent other minority or backward communities it did not last its full term. Had it been more representative of different Communities in the State, the first ministry would have had a longer life.33

Reservation in Administration

Malabar part of Kerala already had reservation in the form of Communal G.O.34 Reservation in the administration was introduced in Travancore in 1936 and in Cochin in 1937. Dr. G.D. Knox, who was appointed by the Government of Travancore, framed the rules of Public Service Commission. These rules reserved 40 per cent jobs in the intermediate category for the backward and depressed classes. At the lower level the posts were to be filled in proportion of the population of each community. This was the arrangement until the Travancore-Cochin State came into existence in 1952.

91 REFERENCES

1. Jagadeesan P.: Marriage and Social Legislations in Tamil Nadu (Madras 1990) p. 31 Srinivasa Pillay and his like-minded colleagues founded the Hindu Progressive Improvement Society in November 1852. The major aims of the Society were the promotion of widow remarriage, the encouragement of female education and the uplifting of the depressed classes.”

2. Galanter Marc: Competing Equalities (Oxford 1984), p. 21.

3. Department of Social Welfare, Government of India, Report of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes and Connected Documents (1969), p. 3.

4. Id at p. 22.

5. Panandiker V.A. Pai, ed., The Politics of backwardness: Reservation Policy in India (New Delhi, 1997), p. 94.

6. Sixteenth Report, Committee on the Welfare of Scheduled castes and Scheduled Tribes (2001-2002) submitted to Lok Sabha on 27th August 2001.

7. Jaswal S.S.: Reservation of Policy and the Law. (New Delhi, 2000), p. 34.

8. Butler Sir Harcourt: India Insistent (1931) p. 73 the policy announcement was made by the then Secretary of State for India Edwin Montagu.

9. Ambedkar B.R: Writing and Speeches Vol. pp. 252-3.

10. Sattanathan A.N.: ‘Relation to Brahminism: DMK’s Heritage’ The Indian Express (Madurai Edition) 24 August, 1967.

11. Venugopal P: ‘Implementation of Social Justice through Reservation’ website accessed on 29th March 2003.

12. Ibid.

13. Jaswal S.S., op.cit., pp. 34-35.

14. Jagadeesan P. op.cit., pp. 97-98.

15. Galanter Marc: Competing Equalities (1984), p. 30.

16. Kamble J.R.: Rise and Awakening of Depressed Class in India (New Delhi, 1979), p. 86.

17. Lord Irwin, Viceroy of India, hoped that by releasing Gandhi, he would be able to reach an agreement with him. In March 5, 1931, Gandhi-Irwin Pact was announced and ‘civil disobedience’ was discontinued.

18. Mathew Thomas: Caste And Class Dynamics – Radical Ambedkarite Praxis (New Delhi, 1992), p. 12.

19. Galentar Mark: op.cit. p. 31.

20. Gwyer and Appadorai, Speeches and Documents on Indian Constitution (London, 1921), Vol. 1, p. 4.

21. A modern Indian historian alleges that the Communal Award of Prime Minister Mac Donald was aimed at ‘divide and rule’ Bipin

Chandra, India’s Struggle For Independence (New Delhi, 1999), p. 290.

22. Wolpert Stanley: A New History of India (OUP 1982), pp. 319- 320.

23. Ibid.

24. Six days after the pact between Ambedkar and Gandhi, the latter started Harijan Sevak Samaj. (Servants of the Untouchables’ Society) and its weekly journal Harijan.

25. The Government of India Act 1935. It is to be noted that Gandhi gave the name Harijan (people of God) to the depressed classes. But this name they resented for they consider the term patronizing and condescending. In 1990 the Government of India prohibited the use of this word to denote the depressed classes.

26. Gazette of India Part I July 7, 1934.

27. Ravindran T.K: Asan and Social Revolution in Kerala (Trivandrum, 1972), pp. 18-19.

28. Id, p. 29.

29. Sree Narayana Dharma Paripalana Yogam, Ezhava Mahajana Conference, Ezhava Political League, Latin Christian Mahajana Subha and Christian Political Conference were some such organizations.

30. Prabhash J.: Affirmative Action and Social Change (2001), p. 84.

31. Report of The Backward Classes Commission, Kerala 1970, Vol. II, p. 15.

32. Ibid.

33. Varkey M.M.: Ormakaliloode (Kottayam, 1974), p. 242.

34. Supranote 32.

95 PART-IV

CHAPTER-I

CRITICAL EVALUATION OF THE ADVOCACY OF RESERVATION BY PROMINENT POLITICAL LEADERS AND SOCIAL REFORMERS

The dehumanizing effects of multi-hierarchical Indian social system and the challenging task of emancipation of the weaker sections in general and the oppressed classes in particular has inspired many humanities to cause relentless crusades against the social catastrophe since times immemorial. First Gautam Buddha and then the two great sons of the Indian soil, Mohandas Karmachand Gandhi and Bhimrao Ramoji Ambedkar involved themselves wholeheartedly, dedicating their lives with the innate concern for the humanity deprived of basic human rights. Driven by their irritable inner conscience and deep anguish, they took upon themselves the onerous task of raising an impregnable pitch of their objective, impassioned and rational interventions at the societal level. In the process, they sought to expose the intricate cobwebs woven underneath the Indian social structure. In order to drive home their socio- religious and revolutionary profiles to advantage of the societal system of their vision, they manifested the finest human instincts of a votary of the so-called modem monumental slogans of liberty, equality and fraternity through their philosophies, preaching and actions. Nobility of heart and revolutionized pragmatism were the two prime, besides many, quintessence of their charismatic personalities, which run parallel to all ages and space, not to be constrained by any specifics of thought, art and

96 culture.

When judged in light of the contemporary socio-economic development, the three personalities, Buddha, Gandhi and Ambedkar, who between the first and the last two appeared on the scene with centuries apart, indicate that the quest for strategic approaches for service of the mankind has been endemic to the reformers, activists and the socio-religious revolutionaries throughout the evolutionary process of social transformation in India. More importantly, the social transformation taking place in the last century or so, coupled with recent developments in socio-economic and political philosophies and current organization of reformative services have led to an intensified need for enlarging the base of emancipatory methods, techniques and practices.1

In recent times, empowerment of weaker sections has become a buzzword for political leaders, policy makers, academicians, social activists, etc. in India. Structurally, it has been regarded as a viable alternative to Weberian model of nation building that rationalizes the bureaucratic systems and procedures in order to deliver good to the society. Instead, empowerment of weaker sections establishes its credentials by enabling the local people to participate in the decision process at grassroots level. The disillusionment arose out of the experiences obtained during 1960s when the United Nations launched its First Development Decade on economic lines and the policy proved inadequate. In 1970 the United Nations changed its strategy favouring an equitable distribution of income and wealth for promotion of social justice and efficiency of productive systems. Greater equality in the distribution of income and wealth, as many development theorists argued, required expansion of facilities for education, health, nutrition, housing and the safeguard of human environment and habitat. This

97 argument advances the importance of empowerment of the weaker sections to capture the socio-political and economic cleavages of a given society through qualitative and structural changes in the society along the lines of substantial reduction of regional, sectoral and social disparities. Thus, the goal considered development only as a 'means' and it clearly subordinated to the 'end' that was the human. In order to create conditions favourable to social justice, and specifically the elimination of poverty a changed strategy was required, i.e., raising the human capital instead of the money capital. Its ultimate objective was to empower the people with the help of a change in the power structure and granting power to those who are socio-politically powerless. The relevance of empowerment of the powerless was supported by the belief that granting powers to those who are powerless accentuates democratization and development of all sections of the population in an egalitarian way.

It became fairly evident that a society that was characterized by a high degree of disparities-sectoral and social, empowerment as per the demographic composition of the society could only be attained through special measures and provisions intended to grant substantial socio- political space to the weaker and vulnerable sections of the population. The need for empowerment of weaker sections was, therefore, considered to be relevant in socio-political and academic circles in the country.2

Viewed in foregoing perspectives, the problem of weaker sections in India has been addressed in variety of ways in the post-Independent India. The rural areas, which had greater preponderance of these sections their problems contained a much sharper edges in the villages. The framers of the Indian Constitution found it expedient to put the Article 46 under the Directive Principles of State Policy, which says, 'The State shall promote with special care the educational and economic interests of the

98 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.3 In 1960 the Government of India appointed a Study Group on Weaker Sections under the Chairmanship of Jayaprakash Narayan in order to spell out clearly the problem of weaker sections to be viewed in the framework of a hierarchical society- 'a ruling and exploiting class at the top and a large labouring and exploited class at the bottom. In India caste has been an additional factor that has further stratified, strengthened, and sanctified the divisions of class'. However, the terms of reference to this Committee were made limited to rural society only and thus the classification on weaker sections found among the urban population could not be included among the recommendations of Jayaprakash' Narayan Committee and thus the vulnerable categories of the urban population, such as casual labourers, the seasonal migrants, the unemployed, and the destitutes like beggar, widows, orphans and handicapped, etc. were left out of the Committee's purview.

As for the categories of groups among the weaker sections neither the Constitution of India nor the Jayaprakash Narayan Committee termed the 'weaker sections' only for the Scheduled Castes and Tribes. The latter had referred the term 'weak' in terms of both economic and social (caste, education, etc.) weaknesses. However, sadly enough. whenever there is a reference to the weaker sections in a sense to include a wide range of groups, the focus shifts from the members of the Scheduled Castes and Tribes who because of their distinct socio-economic, political and religious characteristics constitute the bedrock of the weaker sections. The structural inequalities inherent in the system reduce such groups to permanent socio-economic and political handicaps. Considered against this perspective, economic development alone is found inadequate to

99 render justice to them. Instead, introduction of some intensive structural reforms in the socio-religious domains of the contextual realities pertaining the social set up to be carried out by both official and non- official machineries are considered integral to tackling the problem of socio-economic and political handicaps of such groups. It is in this sense that the problem of empowerment of the weaker sections deserves a more meaningful and lasting approach as a part of the general reconstruction problems of Indian society. Viewed in this perspective, a number of factors tend to influence this empowerment process. Political structure, policy making processes, local power structures, socio-cultural factors, adequacy of infrastructure, clarity and consistency of programme objectives, adequacy and control over funds and support of the national political leaders are some of the factors critical to the success/failure of the empowerment process for these groups of the population.4

The Buddhist perspective:

While examining the relevance of Buddhism in the context of empowering the weaker sections, one needs to dwell into the long history of India's all pervading consciousness that enabled diverse faiths and beliefs to make their meeting place in various periods of the land. The period between the Fifth and Seventh centuries, we saw the rise of one of the key religions of the world, known as Buddhism, which focused primarily on the supreme path of peace both at the individual and social levels. It laid down the fundamental principles of the human condition of suffering, imperfection and dissatisfaction (Dukha) and the factors behind the problem of human condition. In order to find the spiritual rapport with one's own self, Lord Buddha recommended, both in terms of attitudes and

100 action, the four sublime states of life i.e., kindness, compassion, sympathy and even-mindedness (Samata) in principles and practice. At the social level, his philosophy preached for a society that was righteous, harmonious and equalitarian. In essence as well as in reality, the ultimate objective of Buddhist philosophy was to work for a society through the cult of service to free it from any form of exploitation and discrimination, manifest and latent. Thus, Buddhism has been hailed to be a social gospel in the backdrop of a set of doctrines and social reforms embodied in order to preach for a society that would be free from any form of oppression. But unfortunately Buddha’s teachings have not been interpreted properly and understood from the standpoint of India’s social consciousness to derive its relevance to the present as well as the emerging problems both at the individual and social levels; also that Buddhism has never been seriously studied as a social movement. Instead, for many of the centers, departments and institutions and as also to academicians and scholars it has appeared at best as a religion incorporating a set of religion- philosophical constructs, may be of a supreme order and kind.5

The Gandhian perspective

As to the question of empowerment of the weaker sections, especially of the Scheduled Castes, Gandhi had his own distinct ideas and philosophy, which need elaboration and deserve our attention in the present context. Gandhi, even though brought up in a Vaishnava environment and subscribing to Varnashrama dharm, vehemently opposed the institutionalized inequality against the Scheduled Castes and their discrimination and regarded it as satanic activity and a sin. For him upliftment of such communities was not a political posture but an article of faith. The lower status of such communities and their powerlessness vis-a-vis the dominant castes was attributed more to the social structure

101 and economic dependence than that of political participation. Political power in itself is dependent on social relationships. Thus, the question of empowerment is linked to social processes and social relationships. In the post-independent era of national developmental planning, the special measures meant to uplift these communities failed to deliver goods. Despite the increasing number of elites in such communities through special measures in the form of reservation in legislatures and Parliament, jobs and admission in educational institutions, etc. could not succeed in empowering them in all aspects of the term. The elected leaders among the communities have also failed to perform their expected role. Then the questions to be addressed in this context are:6

What were the weaknesses of the policy pursued so far? And in that content what could be the alternative policy of empowerment of such communities under the Gandhian scheme?

The Gandhian theory of social change provides an alternative approach and a strategy towards upliftment of such communities. In this context, he propounded a theory of' liberation and not of development. He was continuously pleading for Swaraj for the masses, for the abandonment of the life of comforts for the elite, for the vertical co- sharing of resources and for liberation of the masses from poverty. According to Gandhi, liberation that sought the real freedom from socio- economic bondages was more appropriate than empowerment that only laid down a, de jure arrangement to grant powers to the powerless sections of the society. Liberation connotes a much wider horizon. In this sense, empowerment in the real perspective can only be realized after the goals of liberation have been achieved to a level that could generate a de facto participation of the weaker sections in political processes of the institutions at the grassroots. Before such a stage is reached, the approach

102 towards the empowerment of such communities is bound to fail for want of liberation of such communities from the shackles of poverty and social deprivation. Further, empowerment relies more on the state-centric action without preparing the social fabric conducive to upliftment of weaker sections. According to the Gandhian view, in many ways the state represents as an agency of coercion and oppression. The Gandhian concept of Swaraj or self-sustained self-development contends that it should be non-violent state in which continuous efforts should be made to free the governmental control because he was afraid of the fact that 'the state represents violence in a concentrated and organized form' and violence is bred in inequality. In respect of such social philosophy he opposed centralized socialism that, according to him, does some good by minimizing exploitation, but it does the greatest harm by destroying individuality that lies at the root of progress.7

Ambedkar’s perspective

Both Gandhi and Ambedkar are part of India’s heritage and so was Gautam Buddha. In their contribution lie the national awakening and societal transformation. Both Gandhi and Ambedkar were rich in terms of weapons in their armoury and they used them with astonishing success, particularly in rousing the conscience of the forces they were fighting. Based on their purpose and the mission, both of them adopted different strategies in their crusades. They differed in their approaches on the question of the Depressed Classes. Radhakrishnan writes ‘Ambedkar was uncompromising and he was impatient about the slow progress in the dismantling of untouchability. His demand for separate electorate, separate area for the depressed classes were all part of his programme,

103 whereas Gandhi was trying to play the role of an integrator who believed that any more class division of Indian society was harmful to the health of the nation. Like Gandhi, the steps undertaken by Ambedkar to shape the destiny of his men and the oppressed classes formed part of the wave which lashed at the shores and citadels of the Indian conscience and carried its legacy for the similar cause of the world humanity at large.8

Ambedkar’s vision was ever down to earth in its originality and approach be it to social, economic or to political issues. He had always something significant to contribute on virtually every important aspects of nation’s life, like caste system, the origin of Shudras, the salvation of untouchables, as well as democracy in India, Parliamentary system, Constitutional morality, Fundamental Rights and on the question of linguistic provinces. He always spoke with authority. He always displayed a strong conviction and depth of scholarship. In his personality he was uncompromising to truth and bore unceasing quest for knowledge and supreme confidence in his mental powers.

Ambedkar dedicated his life to the service of the untouchables. He insisted on calling the Panchamas (the fifth tier in Hindu social hierarchy) as “Untouchables” (unlike Mahatma Gandhi terming the affectionate appellation, Harijan–the children of God), to underline their inherited social plight. In the eyes of Ambedkar, untouchability was a kind of slavery and unlike Gandhi’s peaceful and gradual abolition of this evil, through the precept and example, he advocated the more radical solution of annihilation of caste system as such. The syndrome that Ambedkar catalogues about the root of cult of untouchability proceeded in the ascending line emanating from the caste to religion, to Varnas and Ashrama, to Varnashrama, to Brahminical religion and finally to authoritarianism of political power. Ambedkar, while rejecting Gandhi's

104 approach towards the problem of untouchability, which, according to him, was based on soothing names and soft palliatives, maintained that to ask the help of Shastras for the removal of untouchability and caste is simply to wash mud with mud'. He had little enthusiasm for social reform that did not go to the root of the matter. " .... It is necessary to make a distinction"; he said, "between social reform in the sense of the reform of the Hindu family and social reform in the sense of the re-organization and reconstruction of the Hindu society. The former has relation to widow remarriage, child marriage, etc. while the latter relates to the abolition of caste system". He wanted to abolish the caste because according to him, caste does not result in economic efficiency neither it improves the race. Instead, it has proved to be disastrous in consequences on Hindu society. It has killed public spirit and morality. To quote his own words: 'What efficiency can there be in a system under which neither men's hearts nor their hands are in their work. As an economic organization caste is therefore a harmful institution, in as much as, it involves the subordination of man's natural powers and inclinations to the exigencies of social rules.9

In his vision of the modern India, thus, there was no place for caste. He said," There is no doubt, in my opinion, that unless you change your social order you can achieve little by way of progress. You cannot mobilize the community either for defence. You cannot build anything on the foundation of caste". Thus, in order to bring about radical change in the Hindu social order he was all for a scientific and a rational attitude towards religion-which according to him will not be a religion of rules but a religion of principles. In his vision on the true concept of religion, he was influenced by the ideas of the political thinker and the great British Parliamentarian, Edmund Burke. Dr. Ambedkar commented,

105 'While I condemn a religion of rules, I must not be understood to hold the opinion that there is no necessity for a religion. On the contrary, I agree with Burke that true religion is the foundation of society, the basis on which all true civil government rests and their sanction'. Terming the Hindu religion as a 'Religion of Rules’, Ambedkar drew a distraction between a Religion of Rules and a Religion of Principles. He said 'Rules are practical; they are habitual ways of doing things according to prescription. But principles are intellectual; they are useful methods of judging things. Rules seek to tell an agent just what course of action to pursue. Principles do not prescribe a specific course of action .... The principle may be wrong but the act is conscious and responsible. The rule may be right but the act is mechanical. A religious act may not be correct act but must atleast be a responsible act’. Ambedkar's concept of the religion finds roots in the liberty, equality and fraternity, in short, with democracy. As a Law Minister in the Nehru cabinet, by introducing Hindu Code Bill Ambedkar intended to liberalize the provisions relating to inheritance, marriage, divorce and the status of women. But because of the opposition by the vested interests within the ruling party itself, the Bill could not see the light of the day even after he set the ball rolling for its enactment.10

On the political front, Ambedkar's imprint is laid on the Fundamental Rights and juridical remedies enshrined in the Indian Constitution, just as was the chapter on Directive Principles of State Policy that owned its credence to Jawaharlal Nehru. Side by side underlining the shape and form of the political structure in post- Independent India, Ambedkar was vehement on prescribing the shape and form of economic structure of the Indian society. Ambedkar was opposed to the revival of the glories of Panchayati Raj of decentralized

106 planning and making 'village' as its unit in Independent India. According to him, the village republics represented the ruination of India. While drafting the Constitution of India he wanted to discard the village and adopt 'the individual' as the unit of planning in post-Independent India'. To him, to make democracy a success in India at the political level, twin ideals of social equality and economic justice were the essential pre- requisites. All through his life he remained fearless “I shall be harsh and uncompromising”. Couple of years before his death, he told his men to educate, agitate and organize. He was convinced that this was the only path left for the untouchables to fight the battle for themselves and by themselves with conviction and commitment.11

DALIT MOVEMENTS IN MODERN INDIA

Dadasaheb Gaikwad’s Perspective

After the death of Babasaheb Ambedkar, the mantle of leadership fell upon the shoulders of Dadasaheb Gaikwad. He appeared to be the natural choice, by virtue of his stature in the movement as well as his age. He had grown up to be Ambedkar’s trusted lieutenant through frontline participation in all the battles, right from the days of Mahad. He represented a typical activist of the Ambedkarian movement and had a mass identity. He seemed to know the exact pulse of dalit masses. It is interesting to note that the question of land that by and large constitutes the crux of the dalit problem was and could only be taken up by Gaikwad. It was the biggest and by far the most glorious event in the post – Ambedkar dalit movement. Even during the days of Babasaheb Ambedkar, the mass struggle for land had never materialized in direct terms and at such a scale. At any rate, as a mass struggle for land at the

107 national level, it did not have any parallel in Indian history. It was the first time that the economic dimension of the dalit problem was effectively integrated with their social oppression. It had gained an overwhelming support from the mass all over the country.

However, although it had caught the fancy of dalit masses, the rest of the dalit leadership thought otherwise. They disproved Gaikwad's struggle as being communist and declared that it had no place in Ambedkarian agenda. They highlighted Ambedkar's statement that mass struggles were the grammar of anarchy in the Constitutional regime and should not have any place in a parliamentary democracy. They argued that if the land question was at all important, it could have been taken up judicially in the Supreme Court of India. Fortunately, none suggested parliamentary solution. In tacit terms. the other leaders were accusing Gaikwad of being intellectually incapable of comprehending the subtleties of Ambedkar's ideology and hence unsuitable to step into his shoes.12

Gaikwad, a rustic in the common man's Dhoti Kurta attire, and not embellished with university degrees, could not be accepted by these people. They considered themselves the true heirs to the leadership after Ambedkar on the sole criterion that they fitted the Ambedkarian mould better than Gaikwad. This mould was based on the contemporary middle class cultural norms that Ambedkar displayed in his attire and general demeanour. They would conveniently forget that his western attire was basically a counter to Gandhi's belaboured austerity and a representation of modernity as against Gandhi's anti-modern views. Instead, they aped him in all appearances. They would exhibit their law books as the key to the treasure left behind by Ambedkar. They could thus project themselves as better clones of Ambedkar to the gullible dalit masses. Gaikwad and

108 the people of his ilk could be activists but not the leaders!

The first attempt to iconise Babasaheb Ambedkar and considerably successfully so, as the later times proved, is apparent in this early post- Ambedkar episode. That was the icon of a 'saheb' the epitaph used for an Englishman but later used as an honorific for natives, who were educated, westernised and placed in bureaucratic authority. It denoted someone far above the masses, one who was endowed with authority and power. It was the icon of a saviour. It projected leader as the saviour incarnate who would liberate them from their bondage and lead them to prosperity. All that masses had to do was to stand solidly behind him. They did not have any specific role in the project of their own emancipation other than being meek followers of the leader. This particular icon distanced the dalit leadership from the masses in every way in terms of physical attributes like appearance, clothes, language and lifestyle. It promoted blind following and servile notions. The leaders were to be treated as their quasi-monarch. They could not be questioned on equal terms. They bestowed favours by their very existence. Without leaders the masses could not exist. Moreover, in so far as this syndrome reflected middle class aspirations and value associations, this icon helped petty- bourgeoisize the entire dalit movement.

Although, later the Dalit Panthers brought in a change in this leadership model, certainly in its physical attributes and so made it more people friendly. This leadership model was certainly regressive as it reproduced the decadent feudal structure that dalits were so familiar with in real life; perhaps it was both, its cause as well as its effect. Paradoxically, its protagonists and promoters were the very people who seemed to claim a larger share of modernity. Thus, this early icon of Ambedkar certainly blocked the emerging mass orientation of the dalit

109 movement.13

Kanshiram’s Perspective

The movement of Kanshiram markedly reflected a different strategy, which coined the ‘Bahujan’ identity encompassing all the SCs, STs, BCs, OBCs and religious minorities than ‘dalit’, which practically represented only the scheduled castes. Kanshiram started off with an avowedly apolitical organization of government employees belonging to Bahujana, identifying them to be the main resource of these communities.

Purely, in terms of electoral politics, which has some how become a major obsession with all the parties, Kanshiram’s strategy has proved quite effective, though in only certain parts of the country. He has given a qualitative impetus to the moribund dalit politics, locating itself into a wider space peopled by all the downtrodden of India. But he identified these people only in terms of their castes and communities. It may be said to his credit that he reflected the culmination of what common place icon of Ambedkar stood for. The religious minorities which potentially rears the sense of suffering marginalization from the majority community could be easily added to it to make a formidable constituency in parliamentary parlance. Everyone knew it but none did how to implement. Kanshiram has seemingly succeeded in this task at least in certain pockets. The careful analysis will show that the combination of certain historical developments and situational factors has been behind this success. If not, one will have to constantly exert to recreate the compulsions for their togetherness and allegiance. In absence of any class-agenda, which is certainly the case of BSP, these compulsions could only be created through manipulative politics for which political power is an essential resource. BSP's unprincipled pursuit of power is basically

110 driven by this exigency. It is futile to see in this game a process of empowerment of the subject people as could be seen from the statistical evidence of the cases of atrocities, and of overall situation of the poor people under its rule. There should be no lament over this as essentially it is where any kind of political acrobatics is destined to end in the prevailing system. The imperatives of this kind of strategy necessarily catapult the movement into the camp of the ruling classes as has exactly happened with BSP.14

It seems to have sustaining support from the icon that BSP itself created, where Ambedkar was painted as the intelligent strategist who could turn any situation to his advantage, who used every opportunity to grab political power to achieve his objective. He is the person who saw in political power, a key to the woes of dalits and therefore exhorted them to grab it at any cost. He did not think highly of mass struggles except for tactical reasons to demonstrate the might of the leaders. For him, there existed only means not the values for securing one's goals. He is seen as the person endowed with State authority the sole source of his power to benefit his people. He was the sole arbiter of the interests of his people. Of course, he had disdain for all shades of communism.

Kanshiram's reading of Ambedkar ignores the fact that Ambedkar had to carve out space for his movement in the crevices left by the contradictions between various Indian political parties and groups on one side and the colonial power on the other. For most of his time, he sought maximization of this space from the contending Muslim League and Congress, to name the predominant players, and eventually brought dalit issue to the national political agenda. Kanshiram stuffs his Ambedkar icon entirely with such kind of superfluity that it would look credible to the gullible dalit masses. This icon approves of his sole ideology that

111 political power to his party could solve all dalit problems. His strategy till then has been to be in vantage position to decide who would be the king and thereby leverage his bargaining power. He did not care for democracy. To some extent this non-democratic stance spells his compulsions to have unitary command over his party structure as without it, his adversaries would gobble it up. He did not have any utility for any programme or manifesto, no concern for any issue howsoever burning, no qualms about policy or principles because, his sole obsession is to maximize his power by whatever means. He never even spelt out what precisely ails his Bahujans except for highlighting their prejudiced social identities in worn-out castiest phraseology. That explains his entries into and exits from political alliances with anyone with the same alacrity.15

The underlying value of the movement of Ambedkar was represented by liberty, equality and fraternity. Kanshiram does not seem to respect any value than the political and money power. In Ambedkar, one cannot miss an overflowing concern for the oppressed and wrath against the perpetrators of oppression. Kanshiram's concern scarcely transcended his speeches in his electoral rallies. It was with this concern and commitment that Ambedkar kept on referring to Marx and Marxism till his end, something as a touchstone to test his alternatives. Kanshiram simply abhorred it. Ambedkar struggled to formulate the dalit problem. Kanshiram either took it for granted or did not care for it at all For Ambedkar certain values, moral code etc. were paramount, Kanshiram never seemed to be bothered by these issues. Ambedkar always foresaw plans and programmes; visualized appropriate structures for the downtrodden. Kanshiram expressed clear disdain for such things. For Ambedkar political power was a means, to Kanshiram it appears to be the end.

112 The crux of Kanshiram can be traced to his superfluous attempt to replicate Ambedkar's movement of 1920s as if the times had stood still for the bygone five decades. Ambedkar's mobilization of dalit masses through struggles is vulgarized by him as the 'agit-prop' tool to collect people behind him. When Ambedkar realized the potency of political power, he launched his Indian Labour Party that reflected his urge to bring together the working class, transcending the caste lines. It is only when the political polarization took communal turn that he abandoned his and launched the Scheduled Caste Federation. Although, he accepted the Congress support and offered to work in their government, he never tied up his political outfit to the Congress. It always appeared a politically expedient step for him as an individual without any organizational implication. Declaredly he would avoid the leftists of all hues and accept the friendship of the rank reactionaries of every kind. Ambedkar pointed at the capitalism and Brahminism as the twin enemy for his movement but Kanshiram enthusiastically embraced them without any pinch to his conscience. Ambedkar, in his own way, has been in search of suitable ideological carrier for the dalit movement. Kanshiram has no utility for such a thing.16

Apart from these broad political trends, there are many regional outfits like Dalit Mahasabha in Andhra Pradesh, Mass Movement in Maharashtra, Dalit Sena in Bihar and elsewhere, etc., some of which dabble directly into electoral politics and some of them do not. They offer some proprietary ware claiming to be a shade better than that of others.

113 PART IV

CHAPTER II

THE VISION AND MISSION OF DR. B.R. AMBEDKAR TO CONCEIVE AN EGALITARIAN SOCIETY THROUGH THE TOOL OF RESERVATION BASED ON EQUALITY, LIBERTY AND FRATERNITY

The founding fathers of the Constitution in their wisdom rejected the policy of communal representation initiated and assiduously followed by the British rulers since the days of the Minto-Morley reforms of 1909. The British pursued this policy, which served so well the imperialistic policy of divide and rule. It was obviously calculated to play up one religion or communal group against another and use all of them as a counterpoise to Indian nationalism. Historically speaking, the Mughal and the British conquests of India and their domination over the land led to the formation of different cultural groups, which were by and large religious in their character. The pluralistic character of the Indian society today is the result of peculiar historical circumstances through which it has traversed.

Since the Constitution of a country is not only a set of commands, prescriptions and prohibitions but also an instrument of social and economic change, the founding fathers recognized the inherent defects and evils of the system and rejected such policies and institutions of the past as would prevent the much needed socio-economic revolution. The role played by Dr. Ambedkar, the Chairman of the Drafting Committee of the Constituent Assembly in shaping the public policy of free India towards its minorities in general and the Depressed Classes or the untouchables who are not identified as the Scheduled Castes and Tribes, in particular, is significant.

114 Before Independence:

It is stated already that the problem of the untouchables is to be considered as a part of the minority’s problem even though they were at par of the Hindu religion. A minority, generally speaking, is that part of the general population of a country, which distinguishes itself from the rest by racial, linguistic, religious, and other differences. The degree of distinction is actually determined by its relationship and attitude towards the dominant group. So in a discussion of the minority problem we have to consider its size, social, racial or cultural affinities or disaffinities and the degree of hostility it bears towards the dominant or the majority group and vice versa.17

The problem of minorities in India has been of special significance. It was in the mainstream of Indian national movement and politics. In fact communalism has been the bane of Indian politics of the period. In the words of Jawaharlal Nehru:

‘The communal problem as it was called, was one of adjusting the claims of the minorities and giving them sufficient protection from majority action. Minorities in India.... are not racial or national minorities as in Europe; they are religious minorities... Religion transcends the racial differences, which fade into one another and are often hard to distinguish.18

The problem of untouchables or the Scheduled Castes and Tribes, however, is of a different nature and is on a different footing altogether. His ideas on minority protection, particularly that of the Depressed Classes were put forth in his scholarly writings and also the memoranda that he submitted to the Simon Commission, the Round Table Conference etc. Incidentally, Dr. Ambedkar was a member of the Minorities Committee of the Round Table Conference of which Prime Minister Ramsay MacDonald was the Chairman. He elaborated his views on minority protection, in a brochure

115 ‘States and Minorities- What are their rights and how to secure them in the Constitution of free India’, (1947) which he intended to submit to the Constituent Assembly on behalf of the All India Scheduled Castes Federation. His basic philosophy of Constitutionalism, economic and political democracy etc., found a more complete and clear expression in this brochure, than those that emerged in the Draft Constitution. They are in fact, at variance on a number of issues, because he was not a free agent to write the Constitution in accordance with his own philosophy.

Ambedkar refuted strongly the contention of leaders like Gandhiji that Depressed Classes are not minorities as they are part and parcel of the Hindu religion, and hence they cannot have separate electorates. In fact Gandhiji told the Round Table Conference emphatically that separate electorates to the untouchables ‘will create a division in Hinduism.... I do not mind untouchables, if they so desire, being converted to Islam or Christianity... if I was the only person to resist this thing (separate electorate) I would resist it with my life.’19

Ambedkar contended that ‘social discrimination’ and ‘social separation’ should constitute the real test for determining whether or not a social group was minority. According to this test the Scheduled Castes were the only group entitled to minority protection in India. He maintained that ‘to make religious affiliation the determining factor for Constitutional safeguard is to overlook the fact that the religious affiliation may be accompanied by an intense degree of social separation and discrimination’20 while suggesting ‘social discrimination’ and ‘social separation’ as the criteria, Ambedkar made a distinct contribution to the theory of minorities and their protection as against the usual criteria of numerical position, religious or racial considerations. No wonder, the founding fathers rejected the communal criterion and accepted a more rational, scientific and at the same time a pragmatic principle, that is, the social discrimination suffered

116 by a group to entitle itself for Constitutional safeguards as suggested by Ambedkar.

In his speeches at the Round Table Conference, Ambedkar argued for ‘weightage’ for a minority because ‘it is weak, either in numbers, or because its social standing is low or it’s educational standing is backward as compared with other or because it’s economic strength is not sufficient to place it on a footing par with other communities.’21 He was highly critical of giving weightage on grounds of political importance of a communal group. He said, ‘... I cannot understand, for instance, how weightage can be allowed on the ground of political importance, or loyalty, or services rendered either to the Empire or to the British Government. I think if we adopt that principle, we shall land ourselves in very difficult circumstances from which it will be difficult to extricate ourselves.’22 He was forthright in his observation and did not hesitate to expose the British from their own forums by calling ‘political importance’ as nothing but loyalty of a group to the Empire, which was to be rewarded. If the British were unable to transfer power with guarantees to all, he demanded that ‘power shall be shared by all communities in their respective proportions.23

According to Ambedkar, the national well-being and liberty would depend upon the rights enjoyed by the minorities. With the transfer of power by the British, he had apprehensions that there would be the rule by the orthodox Hindus by virtue of their numerical superiority. He feared

‘.... a great danger of that majority with its orthodox Hindu beliefs and prejudices contravening the dictates of justices, equality and good conscience’.24

Hence the need for special safeguards for the minorities in the future Constitution of India. He further argued that the problem of the Depressed Classes had a special significance, in so far as they were not entitled to even

117 some of the civic rights enjoyed by the other minorities by law. They were subject to social persecution, economic discrimination and political deprivation, unknown in any other part of the world. So he was convinced that there must be statutory or Constitutional safeguards for them as a class and not as a caste without which they would never be lifted from that position of ignominy. He demanded for them political and Constitutional safeguards so that they would be brought on par with others. Ambedkar was not for a mere religio-social approach, but for basically a politico-economic approach to the problem. He was for providing adequate opportunities to enable them to have an effective share in the political power of the country. He believed, once they capture political power, they can order other things, without much difficulty. That is why he did not attach importance to social reform approach of Gandhiji in the form of temple-entry, interlining etc.

In the course of the memorandum that he submitted jointly with Rao Bahadur R. Srinivasan to the Minorities Committee of the Round Table Conference, he had outlined ‘the terms and conditions on which the Depressed Classes will consent to place themselves under a majority rule in a self-governing India, as follows:25

1. Equal citizenship and Fundamental Rights declaring the practice of untouchability as illegal;

2. Free enjoyment of ‘Equal Rights’ protected by adequate Constitutional remedies;

3. Protection against discrimination;

4. Adequate representation to the Depressed Classes in the Legislatures. They must have the right to elect their own people to represent them through (a) adult suffrage and (b) separate electorates for the first ten years, and thereafter by joint electorates and reserved seats, ‘it being understood that

118 joint electorates shall not be forced upon the Depressed Classes against their will unless such joint electorates are accompanied by adult suffrage;

5. Adequate representation in the Services. The memorandum pleaded for the establishment of a Public Service Commission in each Province and in India to undertake recruitment and control of the Public services;

6. Redress against prejudicial action or neglect of interests. An obligation should be imposed on the legislature and the Executive to make adequate provision for the education, sanitation, recruitment and other matters of social and political advancement of the Depressed Classes on the lines of Section 93 of the British North America Act, 1867;

7. Special Departmental Care: It should be a statutory obligation for the setting up of a Department-in-charge of a Minister and ‘to appoint Depressed Class Welfare Bureaus in each Province to work under the authority of and in co-operation with the minister’; and

8. Finally, the Depressed Classes should have a seat in the Cabinet to have an opportunity in framing the general policy of the government. The Instrument of Instructions should place such an obligation on the Governor- General and the Governors.

The British Prime Minister Ramsay MacDonald, being convinced of the force and rationale behind Ambedkar’s demand, provided for separate electorates to the Depressed Classes with a right to vote in general constituency in his Communal Award of 1932. It should be pointed out here that it was not at all the intention of Ambedkar to take shelter under communal principle. In fact he was opposed to it. As we have already noted, his approach was secular and humanistic. He was making a class approach. But it is the British who gave it a caste or communal basis as a part of their general policy of communal representation. Gandhiji, who had already made it clear that he would oppose such a provision for Harijans and would resist

119 it with his life, undertook the ‘epic fast’ at Yeravada prison. Ambedkar had to agree to a system of joint electorates with reservation of seats for the Harijans through the Poona Pact in order to save Gandhiji’s life. But it was a great triumph for Ambedkar that he was able for the first time in the course of his struggle to make the powers that be to accept the principle of special safeguards for the Depressed Classes in any Constitutional arrangement. With all his earlier reservations and opposition to the scheme of Constituent Assembly, he was quick to grasp the new trend and came out in a spirit of co-operation to realize his objectives in the Constituent Assembly to which he got elected from the Bengal Assembly, as he could not muster support in the Bombay Assembly. The Cabinet Mission decided to leave the problem of the Minorities to the charge of a special Committee of the Assembly. The stage was thus set for his launching into the field of Constitution making.

After Independence:

Dr. Ambedkar restated his thoughts on the nature of safeguards for the Depressed Classes in the wake of his experience with the Cabinet Mission proposals. He made out a case for separate electorate in a modified form to have it only in those constituencies in which seats were reserved for them and in others they were to vote jointly.26

Ambedkar was called upon to play a stupendous role in his capacity as Chairman of the Drafting Committee of the Constituent Assembly and as Minister of Law in the Nehru Cabinet. He was entrusted with the responsibility of safeguarding the rights of every Indian, including the Scheduled Castes and providing a form of government and society based on the principles of Justice-social, political and economic. He was convinced that Justice couldn’t be secured to one and all unless it was enshrined in the Constitution itself.

120 Ambedkar, besides being the Chairman of the Drafting Committee, was also one of the seven members representing the Scheduled Castes on the seventy-two members Advisory Committee on Minorities, Fundamental Rights etc., of which Sardar Vallabh bhai Patel was the Chairman. This was as important Committee so far as the minority rights in particular and Fundamental Rights in general were concerned. This Committee had to discharge its responsibility towards the minorities as had been laid down by the Cabinet Mission.

In the new set up of free India, Ambedkar’s approach was different in respect of its thrust rather than the basic philosophy of safeguards. It was not at all his intention to wring some concessions from the Government or to be content with a few more seats for his people. On the other hand, he made use of the opportunity of Constitution making for solving the problem of minorities in India on more enduring grounds and forever. It is also to be noted that he was not for the perpetuation of the minorities, but he pleaded for their merger someday into one. He told the Constituent Assembly:

“.... In this country both the minorities and the majorities have followed a wrong path. It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognize the existence of the minorities to start with. It must also be such that it will enable minorities to emerge some day into one.... The moment, the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.”

His ardent desire that the minorities should ultimately ‘vanish’ is the key to understand better the spirit underlying the safeguards for minorities in the Indian Constitution. The imprint of his philosophy is too obvious to be missed by any one. A quick glance at the provisions adumbrated in Parts-III,

121 IV and XVI of the Constitution indicates the nature of the safeguards to the minorities. Articles 14 to 17, 23, 25, to 30, 38, 39, 46 and 330 to 342 are directly relevant to the problems of minorities’ vis-à-vis the Fundamental Rights.

There are three distinct kinds of minorities recognized for the purpose of providing protection. ‘They are the religious, the linguistic and the Scheduled Castes and Tribes. If the problem of religious minorities is mostly one of the political rights; the problem of linguistic minorities is one of conservation of language, and rights to education and employment; and the problem of the Scheduled Castes is one of social and economic rights, while that of the Tribes is of conserving their culture, laws and tribal property.’

The problems of each one of these minority groups were appreciated fully, and accordingly they are given certain safeguards. Besides embodying the doctrine of Rule of Law and equality in the course of Articles 14, 15 and 16 for the minorities along with other citizens, in the remaining Articles specific safeguards and protections have been laid down. The Constitution has recognized the right of equality for the religious, linguistic and cultural minorities and has stated them fully.

In view of the Changed circumstances and the adoption of universal and adult suffrage, the problem of safeguards had to be approached de novo. Ambedkar realized this and abandoned the stand he had taken earlier. The Advisory Committee recommended ‘that the system of reservation for minorities other than Scheduled Castes in Legislatures be abolished. Sardar Patel Chairman of the advisory Committee, had hoped:

‘It is not our intention to commit the minorities to a particular position in a hurry. If they have come honestly to the conclusion that in the changed conditions of this country, it is in the interest of all to lay down real and genuine foundations of a secular state, then nothing is better for the

122 minorities than to trust the good sense and sense of fairness of the majority, and to place confidence in them.... But in the long run, it would be in the interest of all to forget that there is anything like majority or minority in this country and that in India there is only one community....’

The scheme of political safeguards that emerged from the Advisory Committee and finally incorporated in Part XVI of the Constitution (Arts. 330 to 342) as special provisions heralded a new era in the political and Constitutional life of the country. It abolished the separate electorates, the reservation of seats in the legislatures for all religious minorities and other safeguards, excepting to the Scheduled Castes and Tribes. It achieved the twin objectives of preserving the secular character of our polity, and secondly, it enabled the Scheduled Castes and Tribes, whose claim for such a special treatment is incontrovertible, to receive special protection for a specific period of time which was fixed as ten years from the date of the promulgation of the Constitution. Though Ambedkar would have personally preferred a longer period, he accepted the consensus. He knew fully well that a centuries old malady cannot be cured within a decade. The ten-year period was unrealistic, though it was period. But unfortunately, it gets politicized and exploited by political parties. The latest amendment to it is a case in point. But it is significant that he was for restricting the special protection for a reasonable period of time so that the Scheduled Castes and Tribes are helped to come up to the level of others in society and do not perpetuate themselves. Special safeguards should be temporary and they should not prevent their integration with the rest of the society.27 As we know, in accordance with the Constitutional provision for extending the period at the end of ten years for a further period by the Parliament the safeguards have been extended many times.

The Constitution of India authorizes special preferential treatment not only for Scheduled Castes and Tribes, but for ‘other socially and

123 educationally backward classes’. [Article 15(4)]. They are communities other than the untouchables, or the Scheduled Castes and Tribes. Significantly enough the Constitution speaks of ‘classes’ and not castes. These backward classes are by and large identified on a caste basis, which has been strongly contested. The Government of India has repeatedly suggested that it was better to apply economic tests than to go by caste. It is possible that the caste criterion would retard ‘social cohesion’ and ‘emotional integration’ by fostering ‘divisive tendencies’. Caste criterion goes against the first principle of social justice. Each state is given the freedom to prepare its own list of ‘other backward classes’ and most states have adopted the communal criterion, except perhaps in the state of Jammu and Kashmir and partially the state of Kerala.28 The question, as to who are these backward classes is a post-independence problem, whereas the question of Scheduled Castes was settled before. So the Constitution left the matter with the executive as state level with an option for the center to unify it.

The scope of Article 15 and the enabling clause 15(4) which clubs the ‘social and educationally backward classes’ along with the Scheduled Castes and Tribes for making special provisions for their advancement has brought in a number of complications, specially in the absence of specific criteria for identifying such groups in different states. Social and educational backwardness is found to be a very vague criterion. It is such a situation that has lent the provisions of the Constitution regarding Minorities, Scheduled Castes and Tribes to criticism, even in a caste-ridden society, though some hold it to be the only criterion available. Social backwardness that follows poverty may be aggravated by caste factor. There is therefore an urgent need for evolving a comprehensive criterion for determining the backwardness of a group. Sociological, economic, educational, ‘traditional, unchanging

124 occupations’, ‘ the place of habitation’, etc., may have to be taken into consideration.29

It is significant to take into account at this stage the criteria suggested by Dr. Ambedkar in respect of the untouchables. Though the issue was loaded with a heavy dose of religion in view of Gandhiji’s approach to the problem, Ambedkar tried to lift it from the cockpit of religion and present it as a political problem, which had been reinforced by economic and social considerations. Here was an eminently secular solution to an alleged caste problem. In other words, as a social scientist, Ambedkar almost bordered on the Marxist frame of a class society with class struggle going on intermittently under a caste facade. Though he did not say it in so many words, Ambedkar sought to identity the class interests of the untouchables. In view of the clash of economic interests, the caste-Hindus who exploited them, continued to do so under the garb of religion. Such a claim was, according to Ambedkar, a forged one. He soon recognized this caste-class identity and made it a political issue. It is in consonance with such a principle that he put forth the claims on behalf of the untouchables for Constitutional safeguards to enable them to have a due share in the political power of the country. He always maintained that as a political problem, it has to be resolved through political means. Ambedkar was, therefore, making a secular approach to the problem of minorities in free India. The policy of reservation that he incorporated in the Constitution is based on similar secular considerations. Secularism may as well be considered as a distinct contribution of this champion of the downtrodden to modern India.30

125 REFERENCES

1. Ambedkar Babasaheb 1979. Writings and Speeches, Vol. 1, Mumbai: Education Department, Government of Maharashtra. 2 Ambedkar Babasaheb, 1979. Writings and Speeches, Vol. 3, compiler Vasant Moon, Mumbai: Education Department, Government of Maharashtra. 3 Article 46, Indian Constitution, 1950. 4 Margaret Chatterjee 1983. Gandhi’s Religious Thought. Notre Dame: Notre Dame University. 5. T.W. and C.A.F. Rhys Davids. Fourth Edition, 1959. Dialogues of the Buddha. Part II, London. 6. Gandhi, Mohandas K. 1968. Collected Works of Mahatma Gandhi, Vol. 40, New Delhi: Publication Division, Government of India. 7. Ibid. 8. Iyer, Raghavan. 1973. The Moral and Political Thought of Mahatma Gandhi, New York: Oxford University Press. 9. Supra Note 2. 10. Kalupahna David J. 2002. Buddhist Philosophy, quoted in Nicholas F. Gier, Gandhi, The Buddha and Atman: A Response to Ramashray Ray, Gandhi Marg, January-March. 11. Supra note 2. 12. Kasare M.L., Economic Philosophy of Dr. B.R. Ambedkar, B.I. Publications Pvt. Ltd., New Delhi, India. 13. Ibid. 14. Bakshi, R.K. Dalit Movement Role of Dr. B.R. Ambedkar, Adhyan Publishers & Distributors, New Delhi, Ed. 2010, p. 95.

126

15. Id, p. 96. 16. Id, p. 98. 17. Rajasekhariah A.M., B.R. Ambedkar-The Politics of Emancipation (1971), Ch.4. 18. The Discovery of India, 1966, p. 404-5. 19. Second Round Table Conference, Proceedings of the Federal Structure and Minorities Sub-Committee, Vol. III, p. 1349. 20. Ambedkar B.R. 1947: State and Minorities in B.R. Ambedkar Righting and Speeches, Vol. 1, Bombay. 21 . Round Table Conference, Proceedings of Sub-Committees, Vol. III, Minorities, 1931, p. 79. 22. Ibid. 23. Id., pp. 1357-58. 24. Id., p. 75. 25. Id., pp. 171-72. 26. State and Minorities, op.cit. 27. Constituent Assembly Debates, (C.A.D) Vol.VII, p. 39. 28. Rao, K.V.: Parliamentary Democracy of India, (1961), p. 181. 29. C.A.D. Vol. VIII, p. 311. 30. Galanter, Marc, competing equalities, Oxford, 1984, p. 1821.

127 PART V

CHAPTER I

CONSTITUENT ASSEMBLY DEBATE ON RESERVATION POLICY

The Constituent Assembly came into existence in December 1946. But the birth of the Constituent Assembly was not without the birth pangs.1 Though not a sovereign body in the beginning, the Constituent Assembly assumed sovereignty later.2 Comparing the Constituent Assembly of India with Philadelphia Convention (1787) and to the States- General of France (1789) a scholar points out that the American and French bodies constituted towards the end of eighteenth century were “articulate only in the general way, while in India a strong political factor had emerged by the time the Constituent Assembly was convinced. That was the party system. It is in and through the political parties that the socio economic forces in India had crystallized.”3

The Constituent Assembly worked for about three years in framing the largest Constitution of the world. The ideals, about which the Freedom Movement had spoken, were to be translated into Constitutional provisions. One of them was the protection of the socially backward communities. The rhetoric of establishing an egalitarian society found its vociferous expression in the words of Nehru.4 At that time the issue of reservation was pleaded, explained, accommodated and accepted with the national spirit to assimilate sections of society including the intended beneficiaries of the reservation policy into the main stream of national life.

128 In the present context of affairs in regard to these unfortunate countrymen of ours who have not had these opportunities in the past, special attempts should be made, of course, in the educational and economic field and even in the political field to see that they have a proper place till they find their own legs to stand upon without the external aid.5

The debate on the resolution moved by Nehru in the Constituent Assembly regarding ‘aims and objects’ that later formed the Preamble of the Constitution, clearly reveal the sentiments of different sections of the people. Even though majority of the members wholeheartedly supported the resolution Ambedkar had his own apprehensions. He said:

…I must confess that, coming as the Resolution does for Pandit Jawaharlal Nehru who is reported to be a socialist, this Resolution, although non-controversial is to my mind very disappointing. I should have expected him to go much farther than he has done in that part of the Resolution. As a student of History I should have preferred this part of the Resolution not being embodied at all. When one reads that part of the Resolution, it reminds one of the Declarations of the Rights of Man which was pronounced by the French Constituent Assembly. I think I am right in suggesting that after the lapse of practically 450 years, the Declaration of Rights of Man and the principles which are embodied in it has become part and parcel of our mental make up. I say they become not only the part and parcel of the mental make-up of modern man in every civilized part of the world, but also in our country which is so orthodox, so archaic in its thought and its social structure hardly any one can be found to deny its validity. To repeat it now as a Resolution does, is to say the least, pure pedantry… The Resolution suffers from certain other

129 lacuna. I find that this part of the Resolution, although it enunciates certain right, does not speak of remedies...6

Leaders of the Congress party were very articulate in upholding the rights of the Depressed Classes and offer them adequate safeguards for exercising those right. But doubts were also expressed regarding the effectiveness of these measures.7 On the one hand a member from Madras criticized separate electorate as an effective safeguard for Scheduled Caste reservation:

…Even if the Harijans are given this percentage of Votes and this kind of electorate system, the Harijans are in a position to withstand the attractions that they will have to face at the time of elections. So many parties can set up candidates and they can purchase the Harijans and put up any candidate they desire, and any candidate can come up in the Assembly and certainly he may not represent the community though he may get percentage of votes that is desired by this system. As long as the Scheduled Castes, or the Harijans, or by whatever name they may be called, are economic slaves of other people, there is no meaning demanding either separate electorate or joint electorates or any other kind of electorates with this kind of percentage. Personally speaking I am not in favour of any kind of reservations in any place whatsoever.8

On the other hand, a Harijan Member, Nagappa vociferously argued for reservation for the ancient people who had been exploited by those who came later and dominated them. Quoting the number of Scheduled Caste members and their population in various parts of the country, he tried to focus on the point that ‘reservation’ was essential with regard to Scheduled Castes and Scheduled Tribes.

130 Unilike Scheduled Caste representatives, the Scheduled Tribes representatives expressed their voice of dissent by asserting that they being the original inhabitants need to be treated with dignity. Jaipal Singh from Bihar said:

…If there is any group of Indian people that has been shabbily treated, it is my people. They have been disgracefully treated, neglected for the last 6000 years. The history of the Indus valley civilization, a child of which I am, shows quite clearly that it is the new comers-most of you here are intruders as far as I am concerned-it is the new comers who have driven away my people from Indus Valley to the jungle fastness. This Resolution (Resolution Regarding Aims and Objects, moved by Nehru) is not going to teach Adivasis democracy. You cannot teach democracy to the Tribal people; you have to learn democratic ways from them. They are the most democratic people from earth. What my people require is not adequate safeguards as Pundit Jawaharlal Nehru has put it. They require protection from Ministers, that is the position today. We do not ask for any special protection. We want to be treated like every other Indian… the whole history of my people is one of continued exploitation and dispossession by the non-aboriginals of India punctuated by rebellions and disorder, and yet I take Pundit Jawaharlal Nehru at his word: I take you all at your word that now we are going to start a new chapter, a new chapter of Independent India where there is equality of opportunity, where no one will be neglected. There is no question of caste in my society. We are all equal. Have we not been casually treated by the Cabinet Mission, more than 30 million people completely ignored? It is a matter of political window dressing that today we find six tribal members in the Constituent Assembly. How is it? What has the Indian National Congress done for our fair representation? Is there going to be any

131 provision in the rules whereby it may be possible to bring in more Adivasis and by Adivasis I mean not only men but women too.

Again he remarked:

…I think there has been juggling of words going on to deceive us. I have heard of resolutions and speeches galore assuring Adivasis of a fair deal. If history has to teach me anything at all, I should distrust this Resolution, but I do not.9

The discussion went on to the question of representation in the legislature and many expressed hope that the proposed Constitution would guarantee equality and at the same time protect the rights of the Depressed Classes.

But there are also voices of frustration. For instance H.J. Kandekar came with his own experience. He said: “I remind you of the Poona Pact. I place before you the example of my own province. In Central Provinces where we constitute 25 per cent of the population and we are entitled to 28 seats, we are given only 20 seats in pursuance of Poona Pact. Where have our eights seats gone?… Harijans cannot tolerate such injustice. They should be given representation according to their numerical strength.”10

Provision regarding ‘untouchability’ in the draft Constitution was generally welcomed. Eventually the fundamental right of ‘not being subjected to any discrimination’ came to be qualified by the provisions to procure ‘protective discrimination’. According Nesiah to unlike Martin Luther King, Ambedkar was in a position of authority for as the Chairman of the Drafting Committee of the Constitution and Minister of Law, ‘he was vested with both real and symbolic authority at the highest level’. Hence he was able to intervene effectively for the emancipation of

132 Dalits. According to one member the inclusion of Ambedkar in the cabinet showed that there was a change of heart on the part of the caste Hindus.11 But later events revealed the fact that it was not really a change of heart, but only a political expediency that made the Congress leadership offer Ambedkar such a position. But the relevant question is whether Ambedkar could or did exercise any real power.12 It would be safer to say that his skill as a lawyer was utilized by the then Congress Government.

Report on the Minority Rights, based on which the discussion on political safeguard of the depressed classes was carried on. Sardar Vallabhbhai Patel, who presented the Report said in conclusion:

On the whole this report is the result of careful sifting of facts on both sides. One thing I wish to point out. Apart from representation in the Legislature and the reservation of seats according to population, a provision has been made allowing the minorities to contest any general seats also. There was much controversy about it, both in the Advisory Committee and in the Minorities Committee; but it has been passed by a majority. There was also another point which was a matter of controversy and that was on behalf of the Muslim League and a section of the Scheduled Castes. The point was raised that a certain percentage of votes should be considered necessary for a successful candidate. This was a matter of controversy and amongst the Scheduled Castes themselves a very large majority sent me a representation yesterday saying they were against this. But in the Advisory Committee it was discussed and it was thrown out by a large majority.13

133 Speaking on the Report. P.S. Deshmukh said that the report was highly satisfactory; but at the same time he voiced the fear that the so- called majority might be marginalized. He said:

I am content that no minority is going to try any more to deprive others of what legitimately belongs of them. For many years past it was the majority that has been tyrannized. Unfortunately, the so-called majority is dumb and deaf and although many of us try always to speak in their name, I have no hesitation in stating that we have completely failed in translating our words into action…I, therefore, urge that at least when the Minorities are content to have only their fair share of power in the Cabinets and a reasonable proportion in Government Services, our rulers will pay some more attention to the oppressed and neglected rural population which has even under the sacred name of the Congress has been more undone than assisted…Let this be borne in mind in distributing power and posts among the various Hindu Communities and let the policy of the ‘Devil-take-the hindmost’ cease, at least from now.14

On the other hand members form depressed classes, like S. Nagappa and Jaipal Singh, demanded representation in proportion to their population and representation in cabinets too. With regard to reservation of seats in parliament and state legislatures, originally the Constitution proposed a time limit of ten years. Though this was not agreeable to the Scheduled Castes, they accepted the advice of the political masters. For instance in the words of a member:

We almost all Harijan members of this House sat together and Honorable Pandit Nehru was kind enough to explain to us that in our own interest this will be the best thing. According to his advice we have come to a decision on this point. After all this is a question that has to be

134 reopened by Parliament. If after ten years our position happens to be the same as it is today, then, it is open to the Parliament either to renew it or abolish it.

But even in the same Constituent Assembly speaking on the minority report, Mahvir Tyaggi was highly critical. He observed that giving reservation would not benefit even the so-called Scheduled Castes.

In fact Parliament considered this question from time to time and extended the period of reservation in legislature.15

135 PART-V

CHAPTER – II

RESERVATION AND CONSTITUTION OF INDIA

The affirmative action policies which were in place by 1947 have since been strengthened and enlarged in a manner which Dr. B.R. Ambedkar himself could hardly have foreseen. The Indian Constitution of 1950 is the foundation document for the affirmative action in the second half of the twentieth century. The key provisions of the Constitution in this respect are the following: 1. The Preamble The Preamble of the Constitution places enormous emphasis on justice, liberty and equality; all of which resonate positively with a regime which emphasizes the well-being of the disadvantaged groups. The Constitution sets out to provide … JUSTICE, social, economic and political; LIBERTY of the thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all, FRATERNITY assuring the dignity of the individual and unity and integrity of the Nation… The following remarks of Dr. Ambedkar on how this Preamble is to be interpreted are revealing: It means a way of life which recognizes Liberty, Equality and Fraternity which are not treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of Democracy. Liberty cannot be divorced from Equality and Equality cannot be divorced from Liberty, nor can Liberty and Equality be divorced from Fraternity.

136 2. Articles 15 and 16 These Articles basically prohibit discrimination. It is obvious that any provision for affirmative action will violate these provisions, so clause 16(4) was inserted in the Constitution itself which declared: “Nothing in this Article shall prevent the State from making any provision for the appointments and 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.” However, as this provision applied only to services, the State faced legal action which it tried to introduce reservations for educational advancement. The well-known case of Champakam Dorairajan v. the State of Madras led to the incorporation of the following provision as Article 15(4): “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 citizen or for Scheduled Castes and the Scheduled Tribes.” These provisions are obviously of great significance. It is therefore worth noting that while for a long time it had been the view that Articles 15(4) and 16(4) are “exceptions” to Articles 15(1) and 16(1). According to this view, the claims of the backward classes could be projected only through exceptional Clauses and not outside them. But, in the case of State of Kerala v. N.M. Thomas,16 the Supreme Court by majority rejected this notion of exception and said that the State was free to choose any “means” to achieve equality for those backward classes. It is clear that the Supreme Court has discarded the old way of thinking that Articles 15(4) and 16(4) are exceptions to the equality guaranteed and declared that these Articles are themselves aimed at achieving the very equality broadly proclaimed and guaranteed in Articles 14, 15(1) and 16(1).

137 3. Articles 38 and 46 These Articles are Directive Principles of State Policy as distinguished from fundamental rights are justifiable. Article 38 runs as follows: i. The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may be a social order in which justice, social, economic and political, shall inform all the institutions of national life. ii. The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 4. Article 46 reads: The State shall promote with special care the educational and economic interests 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. 5. Articles 330, 332, 334: Under these Articles, seats are reserved in both the Union and State legislatures for a period of ten years for the Scheduled Castes and Scheduled Tribes. The period of reservation, however, has been continually extended through a series of Amendments to the Constitution. 6. Article 335 States:

The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into account, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

138 It thus establishes the need for the efficiency of administration to be kept in mind in the context of affirmation. The implication that a policy of affirmative action led to an increase in railway accidents, for instance, was rejected by the Supreme Court.

7. Article 340:

This Article is related to the appointment of Commissions to report on the socioeconomic aspect of the life of Scheduled Castes, Scheduled Tribes and Other Backward Classes. Two commissions have so far been thus appointed, the First Backward Classes Commission under Kaka Kalelkar in 1953 and the Second Backward Classes Commission under B.P. Mandal in 1978. This second is none other than the well-known Mandal Commission.

8. Articles 341 and 342:

Article 341 provides for the preparation of the lists of Scheduled Castes and Article 342 provides for the preparation of similar lists for the Scheduled Tribes.

9. Articles 366(24) and 366(25):

These Articles define the Scheduled Castes and Tribes in terms of the aforementioned lists.

The primary ground on which Article 15(5) was challenged was that it violates the Basic structure doctrine. Rajeev Dhavan, one of the senior counsels appearing for the petitioners, argued that the use of “notwithstanding” in Articles 15(3), 15(4) and 15(5) could not be construed as “notwithstanding the declaration of equality principle.” A further ground for challenge was that Article 15(5) directly conflicts with Article 15(4) as both Articles exclude the remaining provisions of Article

139 15. Whereas Article 15(4) excludes Article 15 and Article 29(2), Article 15(5) excludes Article 15 and Article 19 (I) (g). Hence, it was argued that Article 15(5) could not be read in conformity with the principles in Articles 14 and 15, and thus violated the basic feature of the equality.

Observing that a Constitutional amendment which “moderately abridges or alters the equality principle or the principles under Article 19(1) (g)”, Chief Justice Balakrishnan concluded that Article 15(5), insofar as it dealt with state maintained and aided institutions, did not violate the basic structure of the Constitution. Justice Pasayat, Justice Bhandari and Justice Raveendran all concurred on this issue. This clarification on the standard of review that a court must apply in basic structure review may be understood as an elaboration of the “damage or destroy” standard which is central to the application of basic structure review to all forms of state action.

On whether Article 15(5) was Constitutional in light of Article 15(4), the Court noted that both provisions operated in different fields. The Chief Justice clarified the meaning of “nothing in this Article” in Article 15(5) by observing that the ground in Article 15(1) alone would be included in the phrase, and that it would not exclude Article 15(4). While the court may agree that Articles 15(4) and 15(5) can be harmoniously construed. They appear divided on this clarification of the Chief Justice. In contrast to the Chief Justice, Justice Raveendran held that the phrase “Nothing in this Article” in clause (3), (4) and (5) of Article is referred to both clauses (1) and (2) of Article 15. Justice Pasayat merely stated that both provisions operated in different fields and was silent on what was excluded by the non-abstante clause at the start of Article 15(5). Justice Bhandari observed that as Article 15(5) was specific to admission in educational institutions whereas Article 15(4) was

140 general. Article 15(5) would neutralize 15(4) with respect to reservations in educational institutions.

It properly directed. It remains unconvincing because although the court held that Article 15(5) did not negate Article 15(4), there is no dear majority on the scope and ambit of the phrase “Nothing in this Article” in Article 15(5).

Further basic structure review is about compliance with basic features. Surprisingly counsels and the Court conduct this discussion as if Article 15(5) had to be in conformity with other textual provisions of the Constitution. As basic structure review is a model of judicial review which ensure that state action does not damage or destroy basic features or values in the Constitution of India 1950 but not confined to particular expressions in the text to the Constitution. The court seems to be misdirected in its analysis.

Private unaided educational institution has a fundamental right under Article 19(1)(g) (freedom to practice any profession, or to carry on any trade or business) with respect to the establishment and administration of educational institutions. Disagreements relating to the ratio of the case led to the Constitution of a five judge bench in Islamic Academy of Education entrusted with the task of clarifying the judgment in TMA Pai foundation.17 Subsequently, a seven judge bench was constituted in PA Inamdar18 to assess the clarification in Islamic Academy of Education and confirm the Ratio in TMA Pai Foundation. PA Inamdar made in abundantly clears that the law as per TMA Pai Foundation was that “neither can the policy of reservation be enforced by the state nor can any quota or percentage of.

141 PART-V

CHAPTER-III

CONSTITUTIONAL AMENDMENT RECOGNIZING / ENSURING RESERVATION

1. The Constitution (First Amendment) Act, 1951 Art.15 (4) Amendment of Article 15. To Article 15 of the Constitution, the following clause shall be added:

"(4) 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."

2. The Constitution (Eighth Amendment) Act, 1956 Art. 330 Amendment of Article 334.-In Article 334 of the Constitution, for the words "ten years" the words "twenty years" shall be substituted.

3. The Constitution (Sixty-Fifth Amendment) Act, 1990 Art. 338 In Article 338 of the Constitution:

(a) for the marginal heading, the following marginal heading shall be substituted, namely:-

"National Commission for Scheduled Castes and Scheduled Tribes".

(b) for clauses (l) and (2), the following clauses shall be substituted, namely:-

"(I) There shall be a Commission for the Scheduled Castes and Scheduled Tribes to be known as the National Commission for the

142 Scheduled Castes and Scheduled Tribes.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice Chairperson and five other Members and the conditions of service and tenure of Office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission:

(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes;

(c) to participate and advise on the planning process of socio- economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State;

143 (d) to present to the President, annually and at such other time as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the .measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the-Scheduled Castes arid Scheduled Tribes; and

(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes and Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.

(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.

(8) The Commission shall, while investigating any matter referred to

144 in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) requiring the discovery and production of any documents;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses and documents;

(f) any other matter which the President may, by rule, determine.

(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes and Scheduled Tribes."

4. The Constitution (Seventy-Seventh Amendment) Act, 1995 Art.16(4 a)

Amendment of Article 16.-ln Article 16 of the Constitution, after clause (4), the following clause shall be inserted, namely:-

"(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the

145 Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."

5. The Constitution (Seventy-Ninth Amendment) Act, 1995 Art. 334

Amendment of Article 334: In Article 334 of the Constitution, for the words "fifty years", the words "sixty years" shall be substituted.

6. The Constitution (Eighty-First Amendment) Act, 2000 Art.16(4b)

Amendment of Article 16: In Article 16 of the Constitution, for clause (4A), the following clauses shall be inserted, namely: -

"(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision of reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

7. The Constitution (Eighty-Second Amendment) Act, 2000 Art. 335

Amendment of Article 335: In Article 335 of the Constitution, the following proviso shall be inserted at the end, namely:

“Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the

146 Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

8. The Constitution (Eighty-Third Amendment) Act, 2000 Art. 243(d)

Amendment of Article 243M: In Article 243M of the Constitution, after clause (3), the following clause shall be inserted namely:

“(3A) Nothing in Article 243D, relating to reservation of seats for the Scheduled Castes, shall apply to the State of Arunachal Pradesh.

9. The Constitution (Eighty-Fifth Amendment) Act, 2001 art 16

Amendment of Article 16. In Article 16 of the Constitution, in clause (4A), for the words “in matters of promotion to any class”, the words “in matters of promotion, with consequential seniority, to any class” shall be substituted.

147 REFERENCES

1. Chaube S.K.: Constituent Assembly of India (Calcutta 1986), pp. 30-55. 2. Id, pp. 86-91. 3. Id, p. 101. 4. The sixth item in the objective resolution moved by Nehru in the Constituent Assembly read: “Wherein adequate safeguards shall be provided for minorities, backward and tribal areas; and depressed and other backward classes…” 5. Prasad Anirudh: Reservation, Policy and Practice in India (New Delhi, 1991), p. 17. 6. Saksena H.S. (ed) Safeguards for scheduled castes and scheduled tribes: founding father’s view, New Delhi, 1981, pp. 3-4. 7. Id., pp. 173-174. 8. Ibid. 9. Ibid. 10. Id, p. 154. 11. Rao K.V.: Parliamentary Democracy of India: A critical commentary (New Delhi 2nd ed.) p. 12. 12. Saksena H.S.: op.cit., p. 148. 13. Id, pp. 149-150. 14. The period has been extended from time to time by means of Constitutional Amendments. 15. This clause 4 was added by the Constituent (First Amendment) Act 1951.

16. A.I.R. 1976 , SC, 470.

17. (2002) 8, SCC 481.

18. AIR 2005 SC 3226.

148 PART – VI

CHAPTER – I

EVALUATION OF LEGISLATIONS (CENTRAL AND STATE) ENSURING EMPOWERMENT OF SUBJUGATED CLASSES

Affirmative discrimination through reservation for Scheduled Castes in the Lok Sabha, State Legislative Assemblies and in the Panchayati Raj Institutions (PRIs) has established the growing strength of Scheduled Castes not only in terms of their participation in the democratic processes of the country since independence, but also their increasing representation in the political decision making.

The 73rd and 74th Amendments to the Constitution were made in order to revitalize the Rural and Urban Local Bodies respectively by giving them Constitutional status, allocating powers and functions, making provisions for finances, ensuring regular elections and providing for reservation of seats for SCs, STs and women and weaker sections so as to ensure their participation in the political process at all levels. These Amendments have also provided for reservation of offices of Chairpersons at all levels of Local Bodies to ensure their effective role in decision making.

The representation of Scheduled Castes in the political decision- making institutions at various levels has been quite impressive, though they are yet to receive their due share in PRls, State Legislative Assemblies and Lok Sabha. In the 1996 elections, their representation in

149 the Lok Sabha accounted for 13.01 % per cent. Further, while in the PRIs, the share of Scheduled Castes stood at 14.3 per cent in 2001, their share in State Legislative Assemblies was 13.8 per cent in 2000 and 14.5 per cent in the Lok Sabha in 1999. The representation of Scheduled Castes in the Central Council of Ministers has increased marginally in absolute numbers from 6 to 7 during the period between 1991 and 1999. However, their representation as a percentage to the total has declined from 10.5 per cent to 9.5 per cent over the same period. Of the 7 Scheduled Castes in the Central Council of Ministers in 1999, 3 were of Cabinet rank and 4 were Ministers of State.1

Empowerment of the Scheduled Castes through Legislation

There are a number of laws, both Central and State, which provide for safeguards to Scheduled Castes and Scheduled Tribes and OBCs. Some of these emanate from the various Constitutional provisions. A list of such laws is given below:

 The Protection of Civil Rights Act, 1955.2

 The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.3

 The Bonded Labour System (Abolition) Act, 1976.4

 The Child Labour (Prohibition and Regulation) Act, 1986.5

 The Minimum Wages Act, 1948.6

 The Panchayat (Extension to the Scheduled Areas) Act, 1996.7

 Acts and regulations in force in different States to prevent alienation of land belonging to SCs/STs. In some States such provision exists in the Land Revenue Code.

150 Besides the Indian Penal Code (IPC), the Protection of Civil Rights (PCR) Act of 1955 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989, are the two major legal instruments which help prevent/control the atrocities against Scheduled Castes and STs. Under these Acts, as many as 434 Special Courts/Mobile Courts were set up in 7 States. In addition, Special Cells/Squads/ Officers have also been appointed in 19 States to ensure effective implementation of the Act. In accordance with the PCR Act of 1955, special legal aid was also extended to the victims of untouchability and other crimes through Special Officers who ensured effective implementation of the Act, besides extending support for social and economic rehabilitation of the SC/ST victims. The crimes committed against Scheduled Castes and STs vis-a-vis the general population as reported by the National Crimes Record Bureau, New Delhi, reveal that the number of crimes against Scheduled Castes and STs has started declining from 38,927 in 1994 to 36,413 in 1996. However, the share of the crime against Scheduled Castes and STs in the total crime in the country between 1995 and 1996 remained the same. The number of crimes committed which are covered under the Special Laws viz., PCR Act of 1955 and the Prevention of Atrocities Act of 1989, have also shown a declining trend as they have come down from 18,048 in 1994 to 11,863 in 1996. This can no doubt, be attributed to the effective implementation of the two Special Legislations under which Mobile Courts/Special Courts, Special Squads were set up and Special Officers were appointed. Amongst the various types of crimes committed against Scheduled Castes and STs, those covered under PCR Act in respect of Scheduled Castes and those under POA Act in respect of STs continued to be on a high side, besides rape, murder, arson and kidnap and abduction between 1994 and 1996.

151 Empowerment of the Scheduled Castes through Statutory Commissions

The Ministry of Social Justice & Empowerment,8 in its nodal capacity, continued to make special efforts towards ensuring social justice to the weaker sections through enforcement of special legislations and implementation of protective programmes.

There are two statutory Commissions namely i) National Commission for Scheduled Castes and STs; ii) National Commission for Safai Karamcharis play a very important role in safeguarding the rights and interests of the Scheduled Castes.

Armed with the powers of a Civil Court, the National Commission for SCs and STs9 investigated individual complaints/ grievances made on- the-spot visits to the areas where the incidence of crimes/atrocities took place and placed the ‘Action Taken Reports’ before both Houses of Parliament. The Commission for Scheduled Castes and STs also played an effective interventionist role in reviewing the progress of the implementation of Special Component Plan (SCP) and Tribal Sub-Plan (TSP) by the Central Ministries/Departments and the State Governments and also the utilisation of Special Central Assistance (SCA) to SCP and TSP. The outstanding contribution of the Commission was holding national-level consultations with District Development Commissioners/ Collectors to develop a direct district-wise dialogue for receiving the first-hand report on the progress of the implementation of various policies and programmes in improving the status of the Target Groups.

With a major objective of accomplishing complete eradication of the obnoxious and in-human practice of manual scavenging, the National Scheme of Liberation and Rehabilitation of Scavengers and their

152 Dependents was modified in 1998 to accommodate revised norms and involve NGOs in the efforts made for identification, liberation and rehabilitation of scavengers. Though, complete elimination of the practice of manual scavenging could not be achieved by the end of the Ninth Plan .(2002) as targeted, yet around 3.84 lakh out of the 6.53 lakh identified scavengers were rehabilitated, while 1.47lakh were imparted training to take up alternative vocations.

National Commission for Scheduled Castes and Scheduled Tribes

The Constitution of India provided for appointment of a Special Officer under Article 338 for investigation of all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes and to submit reports to the President. In order to oversee the implementation of various safeguards provided for Scheduled Castes and Scheduled Tribes, a Multi-Member Commission, known as the Commission for SCs & STs, came into being with effect from 21-7-78. This Commission was renamed as the National Commission for SCs & STs with effect from 1-9-87 to act as a National Level Advisory Body in Scheduled Castes and Scheduled Tribes matters. The existing and erstwhile field offices of Commissioner for SCs & STs were brought under the control of the newly formed multi member Commission. In 1990, the provisions of Article 338 were amended, vide the Constitution (Sixty fifth) Amendment Act, 1990 and the Office of the Commissioner for SCs & STs was replaced by the National Commission for SCs & STs with effect from 12.3.92.10

THE CONSTITUTION (SIXTY-FIFTH AMENDMENT) ACT, 1990

1. Short title and Commencement

(1) This Act may be called the Constitution (Sixty-fifth Amendment)

153 Act, 1990.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint

2. Amendment of Article 338 In Article 338 of the Constitution

(a) for the marginal heading, the following marginal heading shall be substituted, namely:-

"National Commission for Scheduled Castes and Scheduled Tribes",11

(b) for clauses (1) and (2), the following clauses shall be substituted, namely:-

(1) There shall be a Commission for the Scheduled Castes and Scheduled Tribes to be known as the National Commission for the Scheduled Castes and Scheduled Tribes.

(2) Subject to the provisions of any law made on this behalf by Parliament, the Commission shall consist of a Chairperson, Vice- Chairperson and five other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.

(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.

(4) The Commission shall have the power to regulate its own procedure.

(5) It shall be the duty of the Commission:

(a) to investigate and monitor all matters relating to the safeguards

154 provided for the Scheduled Castes and Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes;

(d) to present to the President, annually and at such other time as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes; and

155 any, of any of such recommendations.

(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub- clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the certain matters.

The National Commission for Scheduled Castes and Scheduled Tribes is a statutory body. It is having its Headquarters at New Delhi and its eighteen State Offices are located at Agartala, Ahmedabad, Bangalore, Bhubaneswar, Bhopal, Calcutta, Chennai, Chandigarh, Guwahati, Hyderabad, Jaipur, Lucknow, Patna, Pune, Ranchi, Raipur, Shillong and Tiruvananthapuram. A Chairman who is aided by a Vice-Chairman and five other Members heads the Commission.

There are four Wings namely 1. Administration & Coordination Wing 2. Service Safeguards Wing 3. Atrocities and Protection of Civil Rights Wing and 4. Economic & Social Development Wing.

The Administration and Co-ordination Wing looks after personnel management of officers and staff of the Secretariat of the Commission and provides administrative support in the functioning of the Commission. The Co-ordination Cell coordinates various activities being performed in the Commission, including making arrangements for

156 holding internal meetings of the Commission as well as arranging meetings with the State/UT Administrations for reviewing the implementation of Constitutional safeguards.

The Service Safeguards Wing deals with the implementation of service safeguards provided to Scheduled Castes and Scheduled Tribes in the Central/State Government services as well as Central and State Government Public Sector Undertakings. All representations/ complaints relating to Scheduled Castes and Scheduled Tribes persons about their service matters are dealt within this Wing. In addition, policy matters relating to enactment/ Government orders and instructions pertaining to representations of Scheduled Castes and Scheduled Tribes in service, evaluation studies/surveys relating to implementation of various Constitutional safeguards in respect of service matters are dealt in this Wing. Cases relating to false caste certificates and inclusion or exclusion of caste(s) in Scheduled Castes and Scheduled Tribes list are also dealt in this Wing.

The Atrocities and Protection of Civil Rights Wing deals with matters pertaining to atrocities caused on Scheduled Castes and Scheduled Tribes and cases relating to protection of Civil Rights Act, the Bonded Labour System (Abolition) Act, the Minimum Wages Act, etc. either on receipt of complaints from individuals or from newspaper reports. This Wing also conducts evaluation studies/surveys on these subjects.

The Economic and Social Development Wing deals with matters relating to development of Scheduled Castes and Scheduled Tribes particularly implementation and monitoring of plan schemes of the Central/State Governments. Some of the specific items of work handled

157 by this Wing are:

(i) Special Component Plan for Scheduled Castes and Tribal Sub Plan for Scheduled Tribes;

(ii) National Scheduled Castes and Scheduled Tribes Finance and Development Corporation

(iii) Cooperative Marketing Federation (TRIFED)

(iv) Representations/complaints made by SC/ST persons regarding their grievances on matters other than atrocities, untouchability practices and service matters;

(v) Tribal Research Institutes and other research bodies;

(vi) Land Reforms Acts and their implementation; Education Schemes for Scheduled Castes and Scheduled Tribes, etc.

Functions and Duties of the Commission

The functions, duties and powers of the Commission have been laid down in clauses (5), (8) and (9) of the amended Article 338 of the Constitution.

Clause (5)

It shall be the duty of the Commission:

(a) To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;

(b) To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes and Scheduled

158 Tribes;

(c) To participate and advise on the planning process of socio- economic development of the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their development under the Union and any State;

(d) To present to the President, annually and at such other times as the Commission may deem fit, reports of the working of those safeguards;

(e) To make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes and Scheduled Tribes; and

(f) To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes and Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.

Clause (8)

The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in 'particular in respect of the following matters, namely:

(a) Summoning and enforcing the attendance of any person from any part of India and examining him on oath;

(b) Requiring the discovery and production of any documents;

159 (d) Requisitioning any public record or copy thereof from any court or office;

(e) Issuing Commissions for the examination of witnesses and documents;

(f) Any other matter, which the President may by rule, determine;

Clause (9)

The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes and Scheduled Tribes.

Functions of the State Offices of the Commission

The State Offices keep a watch on the formulation of policy and issue of guidelines relating to the welfare of Scheduled Castes and Scheduled Tribes in the respective States/Union Territories under their jurisdiction and keep the Commission Headquarters informed about the developments periodically. Policy decisions taken by any State Government/ Union Territories Administration affecting the interests of the Scheduled Castes and Scheduled Tribes are brought to the notice of the concerned authorities for necessary modifications. The State officers are required to liaise with the State/ Union Territories Administration for taking up evaluation and other studies to assess the working of various development programmes implemented for the welfare of the Scheduled Castes/Scheduled Tribes and their impact on ameliorating the socio- economic conditions of the target groups. The findings of the studies are brought to the notice of the concerned State Government for taking remedial measures. The main observations are highlighted in the Commission's Report.

160 The State offices of the Commission interact with the State Administrations and guide them with a view to see that the interests of the Scheduled Castes and Scheduled Tribes are protected and promoted in formulating plans and policies. The State Offices also monitor the utilization of funds earmarked for plans pertaining to Scheduled Castes/Scheduled Tribes, including keeping a watch on diversion of funds from the Special Component Plan and Tribal Sub-Plan, if any.

Each of the State Offices sends Quarterly Report to the Commission headquarters on the activities undertaken by them highlighting major issues relating to welfare of Scheduled Castes/ Scheduled Tribes in each State/UT under their jurisdiction. These reports contain useful information about the developments on Scheduled Castes and Scheduled Tribes matters in a State and enable the Commission to have an overall view on various States as well as national situation for taking appropriate action.12

161 PART-VI

CHAPTER-II

EVALUATION OF RECOMMENDATIONS OF VARIOUS COMMISSIONS / COMMITTEES/ PANELS APPOINTED BY UNION AND STATE GOVERNMENTS

Identification of castes/communities as the OBCs and their listing had a long and chequered history. After 1806, listings in the colonial period were undertaken on an extensive scale on the basis of administrative reports and assessments. This process gathered momentum through the census from 1891 to 1931. In the post- Independence period, the Kalelkar Commission was first asked to indicate criteria for identification as also to recommend communities to be listed as the OBCs.

The government of India then advised the state governments to prepare their own OBC lists. Various state governments set up Committees/Commissions to identify the OBCs in their respective states. However, not all the states formulated their OBC lists and despite legitimizing mechanisms of the Committees/ Commissions, the exercise of listing and the extent of reservation for different groups of communities remained a constant juridical issue before the higher judiciary in India. The Government of India then appointed a second Backward Classes Commission (Mandal Commission) for providing identification criteria and names of the communities to be listed as the OBCs. The report submitted in 1980, remained under processing for over a decade until the V.P. Singh Government issued its order of 13 August,

162 1990, which was challenged before the Supreme Court by Indra Sawhney and others. A nine member Constitutional Bench arbitrated 14 major questions arising there from and gave its historic judgement on 16 November 1992. Among other things, this judgement also directed Constitution of a permanent mechanism for identification of the OBCs at the national level as well as in the State/Union Territories, although it left actual scheduling in the hands of central and state governments. These permanent mechanisms have been active since 1992 and identification of the OBCs has been handled through these routes since then.

The term OBCs did not figure in the Indian Constitution though the debate of the Constituent Assembly had indicated that this was a group which needed special treatment and it was a stratum higher than the Scheduled Caste in social hierarchy. It was also indicated that these OBCs were to be locally designated meaning that there was realization of difficulties in prescribing universally acceptable tests of backwardness given the diverse local social-economic and cultural conditions in different parts of the country.

Before the Constitution came into operation, several states had not only declared OBC lists and offered several benefits, they had also expanded such lists to include many more communities. The Government of India too was persuaded to extend its scheme of post matric scholarships to the OBCs and while doing so, it compiled its own list.13

Different approaches in fixing up the criteria for identification of OBCs by different Commissions reflect the absence of uniform basis of backwardness. The two Central Commissions had different outlooks while State Government Commissions had other outlooks having different considerations. Wide differences between these Commissions

163 on various issues, in some cases even irrational, have not only expressed absence of uniform policy, but also became a source of constant bitterness. Some people though better off enjoy privileges of backwardness in various states and the Central Government services. Others who really deserve privileges, suffer because they belong to castes outside the jurisdiction of backward class. The situation calls for an analysis of different Commissions constituted by various State Governments, including the existing situation and approaches towards the reservation policy for OBCs.

UNION GOVERNMENT

First BCs Commission or Kaka Kalelkar Commission14

The central government appointed the first BGs Commission under the chairmanship of Kaka Kalelkar on 29 January 1953. It submitted its report on 31 March 1955. On the basis of criteria evolved by it, the Commission listed 2339 castes as socially and educationally backward. The Commission made the following recommendations.

1. In all science, engineering, medicine, agriculture, veterinary and other technical institutions, a reservation of 70 per cent of seats should be made for qualified students of BGs till such time as accommodation is provided for all the students eligible for admission. The remaining 30 per cent and also all seats unavailed of by BCs should go to rest of the students.

2. In making selection to the reserved quota of seats, qualified candidates from extremely BGs should be taken into consideration first, and in making distribution, the principle of favouring the lower of the two claimants among, the candidates

164 from the various communities should be followed.

3. A selection Committee consisting of some of the representative of all communities (not necessarily of the backward alone) should be set up to assist the educational authorities in the selection of deserving candidates.

4, Prestige, power and influence, scales of pay, security of employment and scope to distribute patronage all these have made government service attractive. So long as it continues 10 be so, claims of OBCs for adequate representation in the service should be recognized by providing reservation of definite quota of vacancies in each class.

5. The interest of the state, the efficiency and the running of the administrative machinery and the increasing role of welfare state which the administrative services have to play in relation to masses of the country-all these demand that reservation should, where education is sufficiently high among the communities, be in proportion to the population of the communities of the OBCs. Taking all these factors into consideration the conclusion reached by a majority of the members of the Commission is that in all government and local body services, the minimum basis of representation of OBCs should be as follows:

Class I-25 per cent of vacancies Class II-33 per cent of Vacancies Class III-40 per cent of Vacancies Class IV-40 per cent of Vacancies

This percentage would be over and above that which has already been conceded by the government in the case of scheduled castes and scheduled tribes.

165 6. At the end of ten years, the adequacy of representation of OBCs should be reviewed in the light of the statistics then available as a result of the 1961 or earlier censuses, which may contain all communities listed by the Commission in the OBCs group.

7. For the purpose of distribution of the reserved quota of posts among all the communities comprising the OBCs no hard and fast rule need be followed. The circumstances and the social conditions prevailing in the country necessitate greater consideration for the most backward and unrepresented communities in the group. Some system of rotation worked out in the conditions prevailing in the respective state is called for. Communities should be conveniently grouped according to the degree of advancement in each state and degree of advancement in each state and representation in the reserved quota be granted beginning with the most unrepresented groups. This method need not be adhered to for all times. After a period of 15 years the position should be reviewed.

The Central Government refused to accept this report on the ground that no objective criteria were applied in the identification of the BCs. Five out of the 11 members of the Commissions had given notes of dissent. It is also urged at the same time that the best candidates should as a rule, be recruited by means of a competitive examination without any regard to caste consideration. In his forwarding letter, Kaka Kalelkar, the chairman stoutly opposed caste being made the basis of reservation in public service. He emphatically wrote. "I am definitely against reservation in government services for any community for the simple reason that the services are not meant for the servants but they are meant for the society as a whole. Kaka Kalelkar recognized the central role of public administration in the society and favoured recruitment of only the

166 best men available in the land. He ridiculed the practice of reservation by categorically declaring: ‘Reservation of posts for certain backward communities would be as strange as reservation of patients for particular doctors. The patients are not meant to supply adequate or proportionate clientele to all the doctors, whatever their qualifications’. He recommended the principle of 'no reservation' but generous preference. His firm view was that backwardness in society could be tackled on a basis other than caste. The Kalelkar Commission has classified a very large section of the population as backward, and if special assistance had to be given to such large numbers, the government argued, the really needy will be swapped by the multitude. The government preferred economic criterion for the definition of BC.

Second BCs Commission or the Mandal Commission15

The Second BCs Commission was appointed under the chairmanship of B.P. Mandal on 1st January 1979. The Commission submitted its report on 31st December 1980. In its findings it found that the SC and ST constituted 22.5% of the population and the OBCs 52%. Thus in accordance with the principles of justice 52% of the posts under central government should be reserved for them. But since the Supreme Court has firmly laid down that reservation should be restricted to 50%, the Commission recommended that total reservations should be 49.5% i.e. 27% for the OBCs and 22.5% for SC and Scheduled Tribes. The Commission also recommended that reservations should extend even to the private sector which is aided by the central government.

The V.P. Singh government accepted the recommendations with a minor modification on 7 August 1990 after a span of nearly ten years since the Commission had submitted its report. The government decided

167 that candidates belonging to socially and educationally backward castes recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation of 27 per cent. This was quite contrary to the recommendations of the Commission which stated that it shall be adjusted against the reservation of 27 per cent.

The acceptance of this report led to agitations on a national scale. Unprecedented violence and destruction was a consequence of the governmental decision. V.P. Singh government which was a coalition put even its partners in a fix. Unlike the Kalelkar Commission report which was discussed in the parliament, the details and procedure adopted by the Mandal Commission were not even discussed in the cabinet.

Mandal Commission has adopted some criteria of education to identify backwardness over and above the caste criterion. It recommended two separate criteria for identifying the backward section of the Hindu community and of other communities where caste system is non-existent. In respect of employees belonging to the Hindu Community, the following criteria were adopted: (i) an employee was deemed to be socially backward if he does not belong to any of the three- twice born (vij) Varnas i.e., he is neither a Brahmin or Kshatriya nor a Vaishya and (ii) he was deemed to be educationally backward "if neither his father nor grand father had studied beyond the primary level" As regards the non-Hindu communities (i) an employee was deemed to be socially backward: if either (i) he is a convert from those Hindu communities, or (ii) in case he is not such a convert, his parental income is below the poverty line. i.e., Rs. 71 per head per month. (iii) he was deemed to be educationally backward "if neither his father nor his grand father had studied beyond the primary level". Moreover it is stated that

168 the Commission had travelled all over the state, perused the various reservations, schemes prevalent in the state, conducted interactions, with various groups and over and above to all those conducted an extensive socio-educational field survey before arriving at its decisions.

Ranganath Mishra Commission Recommendations:16

Justice Ranganath Mishra recommend that in the matter criteria for identifying backward classes there should be absolutely no discrimination whatsoever between the majority community and the minorities; and, therefore, the criteria now applied for this purpose to the majority community - whatever that criteria may be - must be unreservedly applied also to all the minorities. As a natural corollary to the aforesaid recommendation he recommend that all those classes, sections and groups among the minorities should be treated as backward whose counterparts in the majority community are regarded as backward under the present scheme of things. To be more specific, he recommend that all those social and vocational groups among the minorities who but for their religious identity would have been covered by the present net of Scheduled Castes should be unquestionably treated as socially backward, irrespective of whether the religion of those other communities recognizes the caste system or not. He also recommend that those groups among the minorities whose counterparts in the majority community are at present covered by the net of Scheduled Tribes should also be included in that net; and also, more specifically, members of the minority communities living in any Tribal Area from pre-independence days should be so included irrespective of their ethnic characteristics.

Educational measures: As the meaning and scope of Article 30 of the Constitution has become quite uncertain, complicated and diluted due to

169 their varied and sometimes conflicting judicial interpretations, he recommend that a comprehensive law should be enacted without delay to detail all aspects of minorities, educational rights under that provision with a view to reinforcing its original dictates in letter and spirit. The statute of the National Minority Educational Institute Commission should be amended to make it wide-based in its composition, powers, functions and responsibilities and to enable it to work as the watchdog for a meticulous enforcement of all aspects of minorities, educational rights under the Constitution. As by the force of judicial decisions the minority intake in minority educational institutions has, in the interest of national integration, been restricted to about 50%, thus virtually earmarking the remaining 50% or so for the majority community - he strongly recommend that, by the same analogy and for the same purpose, at least 15% seats in all non-minority educational institutions should be earmarked by law for the minorities as follows:- (a) The break up within the recommended 15% earmarked seats in institutions shall be 10% for the Muslims (commensurate with their 73% share of the former in the total minority population at the national level) and the remaining 5% for the other minorities. (b) Minor adjustments inter se can be made in the 15% earmarked seats. In the case of non-availability of Muslim candidates to fill 10% earmarked seats, the remaining vacancies may be given to the other minorities if their members are available over and above their share of 5%; but in no case shall any seat within the recommended 15% go to the majority community. (c) As is the case with the Scheduled Castes and Scheduled Tribes at present those minority community candidates who can compete with others and secure admission on their own merit shall not be included in these 15% earmarked seats. As regards the backward sections among all the

170 minorities, he recommend that the concessions now available in terms of lower eligibility criteria for admission and lower rate of fee, now available to the Scheduled Castes and Scheduled Tribes should be extended also to such sections among the minorities. In respect of the Muslims - who are the largest minority at the national level with a country-wide presence and yet educationally the most backward of the religious communities.

Sachchar Committee Recommendations17

The report of the High-Level Committee appointed by the Prime Minister under the chairmanship of Justice Rajindar Sachar, retired Chief Justice of the Delhi High Court, to study the ‘Social, Economic and Educational Status of the Muslim Community of India’, has been a subject of wide discussion in the press, among parliamentarians and other politicians as well as in other informed sections of the society.

Most of the grievances of the community are common knowledge and those who have access to the Urdu press in different parts of the country are fully aware of the endless stories of ‘woes’ and ‘miseries’ of the community. It would be appropriate to begin a survey of the Sachar Committee’s findings with the fundamental issue of education. The literacy rate for Muslims in 2001 was, according to the Committee’s findings, far below the national average. The difference between the two rates was greater in urban areas than in rural areas. For women, too, the gap was greater in the urban areas.

When compared to the Scheduled Castes and Scheduled Tribes the growth in literacy for Muslims was lower than for the former. The female urban enrolment in literacy ratio for the SCs/STs was 40 per cent in 1965 that rose to 83 per cent in 2001. The equivalent rate for Muslims—that

171 was considerably higher in 1965 (52 per cent)—recorded a figure of 80 per cent, lower than the figure for the SCs / STs.

According to the Sachar Committee’s findings, 25 per cent of Muslim children in the 6-14 age-group either never went to school or else dropped out at some stage.

The disparity in Graduate Attainment Rates between Muslims and other categories has been widening since the 1970s in urban and rural areas. According to the Sachar Committee, only one out of 25 undergraduate students and one out of 50 post-graduate students in ‘premier colleges’ are Muslims. The percentage of graduates in poor households pursuing post-graduate studies is significantly lower for Muslims: Hindus General (29 per cent); SCs/STs (28 per cent); OBCs (23 per cent); Muslims (16 per cent). The unemployment rate among Muslim graduates is the highest among all Socio-Religious Categories (SRCs), poor as well as non-poor.

In the midst of the widespread discussion about the role of madrasas in the life of Muslims, it is interesting to note that only three per cent of Muslim children go to madrasas.

Some figures of the Committee are very revealing, when the situation of OBCs is considered. In education upto matriculation, graduation and employment in the formal sector all OBCs lag behind in terms of the all-India average. Muslim OBCs fall below the Hindu OBCs in all categories. And, General Muslims are the worst being behind both Hindu and Muslim OBCs.

An important cause for the low level of attainment of Muslims in education is the dearth of facilities for teaching Urdu and other subjects through the medium of Urdu (mother tongue) in lower classes, the

172 Committee points out. It cites the better examples of Karnataka and Maharashtra in this context. These two States are much better equipped with Urdu medium schools at the elementary level. Karnataka has the additional feature of concurrent facilities for English medium as well in a good number of schools, the Committee points out.

In an indirect reference to the utility of reservation, the Committee says that the SCs/STs have reaped advantages of targeted government and private efforts thereby pinpointing the importance of ‘affirmative action’.

According to the findings of the Sachar Committee, Muslims have a considerably lower representation in jobs in the government including those in the Public Sector Undertakings compared to other SRCs. According to these findings, in no State of the country the level of Muslim employment is proportionate to their percentage in the population.

It is pointed out that the situation of government jobs is the best in Andhra Pradesh where a “fairly close” representation (in proportion to the population) has been achieved. Other States with a better picture of representation are: Karnataka (8.5 per cent job share in a population proportion of 12.2 per cent); Gujarat (5.4 per cent against 9.1 per cent); Tamil Nadu (3.2 per cent against 5.6 per cent).

According to an analysis, in all other States, the percentage of Muslims in government employment is half of their population proportion. The highest percentage figure of government employment for Muslims is in Assam (11.2 per cent) even though it is far less than the State’s Muslim population (30.9 per cent).

The most glaring cases of Muslims’ deprivation in government jobs are found in the States of West Bengal and Kerala where, according

173 to common perception, egalitarianism has been the cherished norm in all walks of life. In West Bengal where almost 25 per cent population practises the Muslim faith, their share in government jobs is a partly 4.2 per cent. In Kerala the Muslim representation in government jobs is 10.4 per cent, a figure that is short of half of their population percentage. In Bihar and UP the percentages of Muslims in government jobs are found to be less than a third of their population percentages. Those governing these States need to monitor their actions to bring the situation in conformity with their professed objectives and claims.

There are some factors that need to be considered in view of the low employment figures for Muslims on an all-India basis. The Sachar Committee observes that the low aggregate work participation ratios for Muslims are ‘essentially’ due to the much lower participation in economic activity by the women of the community. Also, a large number of Muslim women who are engaged in work do so from their homes rather than in offices or factories. Their figure in this regard is 70 per cent compared to the general figure of 51 per cent

There is a high share of Muslim workers in self-employment activity, especially in urban areas and in the case of women, the Committee points out. Whether this trend is due to compulsion or their non-expectation for jobs in the government or non-government formal sector, or due to their inclination for certain types of work that are done best under a self-employment scheme, would be an important subject for study. The fact has to be considered that Muslims in regular jobs in urban areas are much lower in numbers compared to even the SCs/STs. And, surprisingly, the Muslim regular workers get lower daily earnings (salary) in public and private jobs compared to other socio-religious categories, as the Committee points out.

174 The point that needs special notice is that, according to the Committee’s findings, Muslim participation in professional and management cadres is quite low. Their participation in security-related activities (for example, in the Police services) is considerably lower than their population share.

In the context of employment of Muslims at the level of the Central Government, the Committee’s findings are very revealing. In the Civil Services, Muslims are only 3 per cent in IAS, 1.8 per cent in IFS and 4 per cent in IPS. (While the figures are shockingly low compared to the population percentage, the fact also needs to be considered that there were only 4.7 per cent Muslims among the candidates at the Civil Services examinations in 2003-04. The figure would be almost identical for other years.)

Figures for other Departments are: Education 6.5 per cent, Home 7.3 per cent, Police Constables (for which no special educational qualifications are required) 6 per cent.

Also to be considered is the finding that in the recent recruitments by State Public Service Commissions, the employment of Muslims has been as low as 2.1 per cent.

Minorities other than Muslims are not placed as delicately as the Muslims. According to the Committee’s findings, 11 per cent of Group A jobs are with minorities other than Muslims. Deprivation of Muslims in the State judicial set-up seems to be among the most worrying aspects of their overall backwardness.

To come back to an old theme, in West Bengal with a Muslim population of over 25 per cent, the figure of Muslims in ‘key positions’ in the judiciary is only 5 per cent. In Assam with a Muslim population of

175 30.9 per cent, this figure is 9.4 per cent. Surprisingly, in Jammu and Kashmir (where the Muslim population is 66.97 per cent), the community’s share in the State judiciary is only 48.3 per cent. Andhra Pradesh once again scores over other States in terms of equitable and even more than equitable sharing of jobs: Muslims have a share of 12.4 per cent in the State judiciary against a population share of 9.2 per cent.

Experts feel that for an inclusive democracy, an equitable share for all sections of the society in the judiciary is essential: it creates greater public confidence in the judicial process. It would be useful to survey the situation in this regard in some other developing and developed countries to be able to arrive at some remedial measures for this crucial sector of decision-making.

Along with education and employment, health and population welfare are the other areas that have to be assessed for estimating attainments of any society. The Sachar Committee has done this exercise in a comprehensive manner.

First, the overall population picture: According to the 2001 Census, the Muslim population of India was 138 million (13.4 per cent of the total population). This figure is estimated to have crossed the 150 million mark in 2006. According to the estimate cited by the Committee, the share of the Muslim population would rise ‘somewhat’ and stabilize at just below 19 per cent in the next four decades (320 million Muslims in a total population of 1.7 billion). There are many areas where the Muslim population is 50 per cent or more; and in nine out of 593 districts (Lakshadweep and eight districts of Jammu and Kashmir) the Muslim population is over 75 per cent.

176 On the positive side, the period 1991-2001 showed a decline in the growth rate of Muslims in most States. According to the Committee’s findings, the Muslim population shows an increasingly better sex ratio compared to other Socio-Religious Categories. Infant mortality among Muslims is slightly lower than the average. (It is beyond the Committee’s understanding how Muslims should have a child survival advantage despite lower levels of female schooling and economic status.) Life expectancy in the community is slightly higher (by one year) than the average, and this should again surprise many.

The Committee’s finding is important that the Muslim child has a significantly greater risk of being underweight or stunted than is the case with other Socio-Religious Categories: the risk of malnutrition is also ‘slightly higher’ for Muslim children than for ‘Other Hindu’ children. This again seems to be a contradiction vis-à-vis the reported child survival rate.

Related to the existing economic condition of Muslims is the issue of providing legitimate support by state and private agencies for the members of the community to improve their position. One would like to examine the situation with regard to trends in the support system of existing instruments. Banks have been seen as an important source of credit to support citizens’ economic and commercial ventures. The picture regarding bank loans to members of the minority is not bright, according to the findings of the Sachar Committee. It says that the share of Muslims in ‘amounts outstanding’ is only 4.7 per cent. This figure is 6.5 per cent in the case of other minorities. Further, on an average the amount outstanding per account for Muslims is about half that of the other minorities and one-third of ‘others’.

177 An analysis by the Committee showed a fall in the availability of medical facilities with the rise in the proportion of Muslims, especially in larger villages. A similar but sharper pattern can be seen with respect to post/telegraph offices.

The Sachar Committee has talked of the issue of social stratification among Muslims. It points out that the 1901 Census had listed 133 social groups, “wholly or partially Muslim”, in India. This classification thus recognised the fact of social stratification in the community. The Committee has identified different groups of Muslims based on studies by sociologists. The community, according to these studies, as mentioned by the Committee, is placed into two broad categories, namely, ashraf and ajlaf. The former, meaning ‘noble’ (emphasis added), includes all Muslims of foreign blood and converts from higher castes. While ajlaf, meaning ‘degraded’ (emphasis added) or ‘unholy’, embraces the ‘ritually clean’ occupational groups and low ranking converts. In Bihar, UP, Bengal, Sayyads, Sheikhs, Moghuls and Pathans constitute the ashrafs, The ajlafs are carpenters, artisans, painters, graziers, tanners, milkmen, etc. According to the Census of 1901, the ajlaf category includes “the various classes of converts who are known as Nao Muslim in Bihar and Nasya in Bengal. It also includes various functional groups such as that of Jolaha or weaver, Dhunia or cotton carder, Kulu or oil presser, Kunjra or vegetable seller, Hajjam or barber, Darzi or tailor, and the like.” The 1901 Census also recorded the presence of a third category called Arzal: “It consists of the very lowest castes, such as Halalkhor, Lalbegi, Abdal and Bedia.” The Committee has taken note of the fact that the Presidential Order (1950), officially known as Constitutional (Scheduled Caste) Order, 1950, restricts the Scheduled Caste status only to Hindu groups having “unclean” occupations. Their

178 non-Hindu equivalents have been bracketed with the “middle caste converts” and declared OBCs.

The Committee has noted that at least 82 different social groups among Muslims were declared OBCs by the Mandal Commission (1980). Owing to this declaration many Muslim social groups got reservation in different parts of the country under the Backward Classes category. Only two States, Kerala and Karnataka, have provided reservation to the State’s entire Muslim population (minus the creamy layer). The roots of this policy have to be traced to the colonial days.

Sachar Committee. Significantly enough, reservations in Tamil Nadu stand at 69 per cent, much above the limit of 50 per cent fixed by the Supreme Court. Looking at the state of public employment for OBCs the Committee found that unemployment rates were the highest among Muslim OBCs when compared to Hindu OBCs and Muslims General. In the formal sector (government/PSUs), the share of Muslim OBCs was much lower than those of Hindu OBCs and Muslims General.

In the context of Muslim OBCs, the Committee concluded that the abysmally low representation of Muslim OBCs suggests that the benefits of entitlements meant for the Backward Classes are yet to reach them. The Committee also concluded that “the conditions of Muslims General are also lower than the Hindu-OBCs who have the benefits of reservations”.

While the Sachchar Committee has done a laudable job of assembling a huge body of data and presenting it in an easily digestible manner, it has not been as meticulous in formulating its recommendations. Perhaps it was due to the fatigue after an enormous amount of legwork on a national scale and the subsequent analysis of the

179 compiled information that its members had to do in about 15 months of actual work, coupled with the desire of submitting its report rather urgently and the fact that much of the information about its findings had already been accessed by a section of the press. In view of the mind- boggling findings and the very sensitive nature of the ground it was traversing a very comprehensive matrix of recommendations should have been presented by an able and competent panel blending experience and fresh thinking. Unfortunately this could not be achieved by the Committee. The most important recommendations of the Committee can be summarised as under:

 Creation of a National Data Bank (NDB) where relevant data about different socio-religious communities could be stored to facilitate any study and subsequent action.

 Setting up of an autonomous Assessment and Monitoring Authority (AMA) for a regular audit of the benefits of different programmes of the government reaching the concerned communities or groups.

 Establishing an Equal Opportunities Commission (EOC) to examine and analyse the grievances of deprived groups, the inspiration understandably for it coming from the Race Relations Act, 1976 of the United Kingdom that finds mention in the Committee’s recommendation.

 Exploring the idea of introducing some incentives to a ‘Diversity Index’ in the realms of education, government, and private employment and housing programmes. Special mention has been made of a possible programme of incentives to colleges and

180 institutions under the University Grants Commission linked to diversity in the student population.

 Evolving some sort of a ‘nomination’ procedure for enhancing the levels of inclusiveness in governance.

 Certain measures like removal of anomalies in Reserved Constituencies for General Elections against complaints of declaring Muslim concentration areas as SC/ST reserved seats.

 Institutionalizing evaluation procedures for textbooks, alternate admission criteria in regular universities and autonomous colleges; cost friendly reasonable hostel facilities for minority students as a priority; making teacher training oriented to ideals of pluralism; state-run Urdu medium schools for primary education in mother tongue; ensuring appointment of experts from minority community on interview panels and boards; linking madrasas with higher secondary schools facilitating shift of students who might opt for a mainstream education system after a few years; recognition of degrees from madrasas for competitive examinations (a recommendation hard to find acceptance in any section of concerned quarters); on the economic front, provision of financial and other support to initiatives built around occupations where Muslims are concentrated and that have growth potential.

The above suggestions have given considerable food for thought with regard to the panacea for deprivation of the Muslim community in various spheres. But a more comprehensive and concrete programme should have been suggested by the Committee.

This task could have been performed best by the able members of this panel who had travelled far and wide and acquainted themselves with

181 the grassroots realities rather than leaving it for another possible Committee for a start from a scratch. This was essential to get action initiated on the basis of its findings instead of letting this venture too meet the fate of the earlier Gopal Singh Committee over two decades ago that had similar findings (although it had a narrower coverage than the Sachar Committee).

Much of the Sachar Committee’s endeavour was in pursuance of the perception among Muslims of utter neglect and apathy, and even suspicion, towards the Muslim community on the part of governmental agencies—right or wrong! An often repeated remark by many members of the community was that Muslims carried a double burden of being labelled as ‘anti-national’ and as being ‘appeased’ at the same time. Or, whenever any act of violence or terror occurs Muslim boys are picked up by the police. “Every bearded man is considered a terrorist,” the Committee has quoted someone as saying. It was also pointed out that “social boycott of Muslims in certain parts of the country have forced them to migrate from places where they lived for centuries.”

The Committee has also observed that identification of Urdu as a Muslim language and its politicization has complicated matters. A worrying observation is that Muslims do not see education as necessarily translating into formal employment. And, many a time madrasas are the only educational option for Muslims.

On the economic front, the Committee observes that liberalization of the economy has resulted in displacement of Muslims from their traditional occupations, thus depriving them of their livelihood.

The Committee has reported that there were many complaints of Muslims’ names missing from electoral rolls. It could not look into the

182 veracity or otherwise of this complaint. But what the Committee found in case of complaints that a number of Muslim concentration Assembly constituencies are declared as ‘reserved’ seats for the SCs (deliberately?) should certainly worry those involved with the work of delimitation of constituencies. Its analysis of reserved constituencies for SCs in Uttar Pradesh, Bihar and West Bengal proved that there was truth in the allegation of the members of the minority community in this regard.

With the perception of Muslims not being quite favourable to official agencies, the revelation of the findings of the Sachar Committee with regard to over-representation of the community in the country’s prisons, reported (before the submission of its report to the Prime Minister) by The Indian Express, in its series of reports entitled ‘The Missing Muslim’, created a sensation. The Urdu press was on fire and questions were asked why prisons were the only place where Muslims were over-represented compared to all other communities and in some cases their representation being much higher than their population proportion.

The remedy for the travails of the Muslim community can be found largely by the community’s bolder initiatives in the field of education that would empower them as nothing else would.

The government, on its part, seems to be ready for whatever remedial measures can be adopted by its different agencies. The recent initiative taken by the Deputy Chairman of the Rajya Sabha, K. Rehman Khan, to arrive at a consensus for action on an all-party basis, through a conclave of Muslim MPs (including some from the Bharatiya Janata Party, which has been very critical of the very appointment of the Sachar Committee), seems to be a significant one.

183 UTTAR PRADESH

In U.P., in 1945, the Government of United Provinces of Agra and Oudh identified 37 Hindu Castes and 21 Muslim groupings as backward and gave them educational concessions. In 1950, the Uttar Pradesh government reserved 10 percent of the jobs in government services and educational institutions for the Scheduled Castes but did nothing specific for the backward classes. In 1955 a cabinet sub-committee drew up two lists of backward c1asses- one for the purpose of recruitment to the public services and the other for the sanction of educational concessions. The first consisted of 15 and the second of 59 backward castes.

Later in 1958, the State Government prepared other two lists, one containing 37 Hindu castes and the second 21 Muslim groupings. These lists were similar to those of 1945. They were used for granting educational concessions. There was no move to reserve posts in government services.

Chhedi Lal Sethi Commission, 197518

Though the efforts for BC betterment had started long before it was in October 1975 that a Most Backward Classes Commission was constituted under the Chairmanship of Chhedi Lal Sethi to consider the position of the most backward classes as distinguished from the 'backward classes' and to suggest measures for improving their conditions. The Commission used social evils like poverty, illiteracy, housing, occupation, caste, social inequality and representation in government services, industry and commerce as parameters for measuring backwardness. After two years' deliberation it gave its report in June 1977. Classifying backward classes into three categories, it recommended separate quotas in government jobs for each of the three

184 categories.

The lists that were first prepared, contained 36 backward castes with a little land or without land (17 percent), the second had 18 agriculturist castes like Yadavas, Gujars, Kurmis, etc. (l0 percent), and the last one was exclusively for the backward classes from the Muslim Community (2½ percent). The Commission recommended special facilities, scholarships, etc. for the caste and other sections it had designated backward.

Government led by Janta party partially accepted the recommendations of the Commission and passed orders for the reservation of 15 percent of government services and seats in technical and professional institutions for candidates of the backward classes. Already 18 percent of the jobs were reserved for the SCs, 2 percent each for the STs and handicapped, 5 percent for the dependents of freedom fighters, and 8 percent of jobs for retired military personnel. With the reservation of 15 percent of jobs for the backward classes, the total reservation for different social groups reached 30 percent. This gave birth to an anti-reservationist movement in 1977.

The reservation policy then came up before the Allahabad High Court. The petitioners alleged that many of the so-called backward castes like Ahirs (i.e. Yadavas) and Kurmis were not economically and socially backward, that most of them were well off big farmers and were· prosperous, and that quite a number of them were highly educated and occupied high offices. The report had listed 120 communities. it was struck down by the Allahabad High Court.

Later, in March 1994, the Uttar Pradesh government revised its reservation policy in accordance with the Supreme Court judgement on

185 Mandal Commission report. It implemented the Supreme Court order of 16th November 1992 for 27 percent reservation in favour of OBCs in the State Governments. It caused strong protests from the people of eight districts of hilly area of then Uttar Pradesh. In these districts OBCs constitute only 3 percent population. These districts are dominated by the upper castes and they are agitating from July 1994 for the withdrawal of raised reserved quota. This agitation was also related with the formation of Uttaranchal State which has been created since, 2000 but their demand regarding dereservation is yet to be heard.

The V.P. Singh Government constituted a Social Justice Committee on June, 2001 under the chairmanship of Mr. Hukum Singh. The Committee submitted its report in August, 2001 and recommended 28 percent reservation to OBC, on the basis of three classification of castes: (a) Backward Castes; (b) More backward castes and (c) Most backward castes.

BIHAR

In 1951 the Government of Bihar had prepared a list of 109 backward classes for awarding post-matric scholarships, etc. under a scheme launched by the Deptt. of Education, Government of India advised the State Government to draw their own list as they did not accept the recommendations given by Kaka Kalelkar Commission. In 1964 Patna High Court (AIR 1965, Patna 372), in view of Supreme Court's judgement in Balaji's case, declared Bihar government's list of backward classes as invalid as it had relied on caste as the criterion of backward classes. In view of this the State Government decided that the current educational benefits should be given only to such students of other backward classes mentioned in the 1951 order whose family

186 income was below Rs. 500 per month.

Mungerilal Commission, 197119

Bihar government appointed a Backward Classes Commission under the chairmanship of Shri Mungerilal in June 1971 which submitted its report in February 1976. The Commission took note of representation in government and private services, membership in elected bodies occupation and share in trade, commerce, industry, etc. It began with a list prepared in 1951 for the grant of scholarship to students of the backward and the most backward castes in Bihar. Its enquiry was based on the other backward classes lists prepared by Kalelkar Commission. The Commission, then prepared its own list of socially and educationally backward classes on caste and economic basis, this list contains 128 backward castes, including 94 castes known as 'most backward classes'. In the state 38.1 percent population was estimated as OBCs. It had received miserable representation in government and semi government services. It favoured rebate of 10 percent marks for getting admission in educational institutions, like SCs and STs, maintenance of roster and carry forward policy for reserved quotas in case of reserved posts for OBCs are not being filled. The Commission recommended a number of welfare measures and other recommendations about reservation of 24 percent seats in medical and other professional institutions and 26 percent posts is government and semi-government jobs for the other backward classes. It also viewed that the backward and the most backward classes be considered separately in enforcing the reserved quotas. The Jagannath Mishra Government did not take any action on these recommendations obviously in view of its support base of forward castes.

In 1978, the Janata Party government chaired by Karpoori Thakur,

187 implemented the recommendations of Mungerilal Commission. The State government accepted the recommendations in October, 1979 which gave rise to a lot of agitation. Both the forward and the backward communities were dissatisfied with the government. The implementation of recommendations also raised lot of controversy. Many recruiting agencies misconstrued the provision for reservation as prescribing the upper limit for the intake of backward class candidates selected on merit. In case of OBC candidates in excess of the reserved quota of 20 percent got selected in open competition the actual intake was restricted to 20 percent only.

GUJARAT

In Gujarat State government appointed Backward Classes Commissions for identifying SEBCs or OBCs in the State.

Bakshi Commission, 197220

This Commission was appointed under the chairmanship of AR. Bakshi, a retired High Court Judge and Chairman of the Law Commission to prepare a list of OBCs and recommend measures for their amelioration in August 1971 submitted its report to Gujarat Government in February 1976 and listed 82 castes and communities as socially and educationally backward and recommended the following steps for their advancements: (a) reservation of 10 percent seats in medical, engineering and other professional institutions; (b) reservation of 10 percent of the class III and class IV posts in all government services, (c) reservation of 5 percent of all class I and class II vacancies in all government services, local bodies, or public undertaking, etc; (d) reservation of 10 percent of the seats in training-cum-production centres; and (e) granting of scholarships and other educational facilities, provided the parental

188 income did not exceed Rs. 4,800 per year, This income limit was increased to Rs. 7200 in the case of nomadic and denotified tribes.

The Janata Party government accepted all the recommendations and implemented them. Some castes, which the Commission did not accept socially and educationally backward, made representations to the government requesting reconsideration of their castes.

Rane Commission, 198121

Government appointed the second Backward Classes Commission in April 1981, headed by C.Y. Rane, a retired Judge of the High Court of Gujarat to consider whether there were any other castes/communities/classes which could be included in the category of socially and educationally backward classes. The terms of reference of this Commission were the same as those of the Bakshi Commission. The Commission undertook an intensive tour of all the districts excepts the district of Dangs in the State for gathering information from various sources and recording evidence. It submitted its report to the government in October, 1983.

This Commission also recommended reservation of seats/posts in educational institutions and in government services for the socially and educationally backward classes in proportion to their population alongwith a relaxation in the higher age limit for entry into service.

The Commission, recommended reservation of only 28 percent of the posts and seats for them. Even then this meant an 18 percent increase over the quota of reservation as recommended by the Bakshi Commission. In January 1985, the Government of Gujarat reserved 28 percent of seats and posts for the other backward classes. It did not approve the occupational criteria as suggested by the Rane Commission

189 but went with the caste criterion. It witnessed anti-reservation protests.

ANDHRA PRADESH

Before the organization of Andhra Pradesh, the OBCs were getting preferential treatment in the State of Madras. In 1966 the Government of Andhra Pradesh notified a list of 112 communities belonging to OBCs and ordered for reservation of seats for them in government services and professional colleges, etc. Several writ petitions were filed against this order. It was struck down by the High Court of Andhra Pradesh on the ground that the state could not produce evidence regarding the social and educational backwardness of the listed communities. This decision was upheld by the Supreme Court also.

Manohar Pershad Commission, 196822

On 12th April, 1968, the State Government appointed a Backward Classes Commission, chaired by Manohar Pershad, for preparing a list of all the backward classes which were not adequately represented in the services of the state and to make suggestions in regard to (a) the reservation of government posts in favour of such backward classes; and (b) the percentage of such reservation and the fixed time during which such reservation might be extended. The Commission carried out an exhaustive survey of the trades and occupations being pursued by the various classes of people and other matters relevant to the decision of social backwardness. It indicated that only castes or communities, which had traditionally followed unclean and undignified occupations, could be called backward classes. Representatives of these castes demanded reservation up to 40 to 50 percent. Some of them demanded percentage of reservation in proportion to the population as per the principle adopted by the Government of India in the case of the SCs and the STs.

190 In its report of 20th June, 1970, the Commission listed 92 classes as other backward classes. Further, it recommended reservation of 30 percent of the vacancies in government service and educational institutions for candidates belonging to the backward classes. This would be in addition to the seats the backward class candidates might avail in the open competition.

Veerappa Committee, 197523

Vidhan Sabha after fifth general elections in 1975 appointed a Committee of the legislature headed by Agisam Veerappa to recommend welfare measures for the benefit of the backward classes. The Committee, which submitted its report in 1977, suggested the following measures along with 25 percent reservation: (a) sanction of scholarships from class I onwards instead of VI standard as was the practice; (b) an increase in the amount of the scholarship; and (c) a lowering of the minimum marks from 40 percent to 35 percent required for admission.

Murlidhar Rao Commission, 198224

The third State Commission, constituted in February, 1982, was headed by Murlidhar Rao. The Commission, in its report in September 1982, suggested 44 percent reservation of seats and posts for 52 percent state population of OBCs. The Commission included 10 more castes and sub-castes in the list of OBCs and thus the total rose to 102 castes. The recommendations could not be implemented by the Congress Govt. as it was defeated in the state assembly elections in 1983. The ruling Telgu Desham implemented it only in July 1986, The High Court of Andhra Pradesh struck it down on 5th September, 1986. The government decision reserving 71 percent of seats and posts witnessed public protest against.

The N.T. Rama Rao reservation policy (1986) was designed to

191 benefit the most backward sections of the OBCs. The 44 percent reservation was distributed among the five categories of the OBCs according to their backwardness and population. Again, the reservation quota was only available to those with family income of less than Rs. 12,000 a year. The dependents of a large number of government employees were not able to enjoy the benefit owing to low income limit. In contradiction, the students belonging to the agriculturist and trade background might have been benefited with fake income certificates.

HARYANA

Haryana was earlier part of the Punjab State till 1966. Two Committees were appointed in 1951 and 1961 by the erstwhile Punjab state government to recommend measures for welfare of OBCs. The last Committee is known as Brish Bhan Committee.

During the year 1969, the Government of Haryana published a list of backward classes without a formal inquiry into their economic backwardness and social status. (a) It declared 10 percent reservation in government services and 2 percent in professional and technical institutions. The facilities and concessions awarded to reserved posts at the time of initial appointment, irrespective of their income; (b) Reservations included promotions as well class III and class IV posts; (c) Income limit for students for scholarships has been raised from Rs.1,800 Rs. 4,200 a year.

The State Government had not adopted any specific criterion to classify the people of the state before 1991 as backward. On the grounds of their economic backwardness and social status of occupation, certain class of people have been declared as backward. These incorporated:

(i) All the residents of the State whose family income is less than Rs.

192 1,000 per annum, irrespective of the fact as to the caste, community or class they belong to and the profession they follow.

(ii) Besides certain other communities should also be declared as backward by the State Government. These communities should be such as are socially looked down upon by the other people of the State. All the members belonging to these backward communities, excluding those whose family income was more than Rs. 1,800 per annum should be entitled to privileges being enjoyed by backward classes.

Gurnam Singh Commission, 199125

In the year 1990, when anti-Mandal agitation was very strong in all parts of Haryana, Jats, the dominant caste of Haryana were asking for inclusion in the list of OBCs. In early 1991, the first Backward classes Commission was constituted under the chairmanship of Gumam Singh. The Commission gave its report in 1991 itself in which included the most numerous and dominant castes in OBCs. These Castes are Jats, Ahir, Bishnoi, Gujar, Saini, Rajput, Meo and others. Now, 27 percent posts are kept reserved for OBCs in Haryana beside 19 percent to SCs. There is no separate reservation for STs in Haryana.

HIMACHAL PRADESH26

Like Haryana, the Government of Himachal Pradesh also followed the list of OBCs declared by the erstwhile state of Punjab. Official of State Government had prepared a list on the basis of economic backwardness and social status. They identified the following sections of people as backward: (a) All the residents of Himachal Pradesh whose annual income is less than Rs. 6,000 are backward irrespective of their caste or community and professions or occupation; (b) Members of

193 certain communities are backward if their annual family income is not more than Rs. 6,000.

OBC list is based on both Caste and income. The quota of reservation was 5 percent of the vacancies in government services and in educational institutions. Students of the backward classes also receive scholarships, interest free loans, and the tuition fees paid by them are reimbursed. Besides, they have reservation in promotion to selection posts in class III under the government.

In 1970, the Government of Himachal Pradesh had, on the basis of economic backwardness and social status of occupation other than castes, identified the following sections of people as backward:

(i) (a) All the residents of Himachal Pradesh whose total income is less than Rs. 6,000 per annum, irrespective of community or class they belong to and what ever professions they are following.

(b) Alongwith the above category, persons belonging to the communities, listed in the annexure attached to the report, having a family income not exceeding Rs. 6,000 per annum should also be considered as backward in the State.

(ii) Both 'economy-based' and 'caste-based' backward classes in the state will receive the following facilities and concessions:

(a) Pre-matric stipends at primary, middle and high/higher secondary stages;

(b) Refund of tuition fees;

(d) Reservation of two percent in direct recruitment and in promotions to selection posts in class III and class IV

194 services of the government.

On the basis of the Mandal Commission report, the reservation policy in Himachal Pradesh was changed in 1993. Now, 50 percent jobs are reserved for the 3 categories of backward 25 percent for SCs, 5 percent for STs and 20 percent for OBCs.

JAMMU & KASHMIR

Reservation Policy in J&K has been a controversial issue between the government and the judiciary. Judicial intervention forced the State Government to appoint these Backward Classes Commissions. In 1956, the State Government passed Civil Services Rules which provided for reservation for the backward classes in government services without making any special class of people as backward.

Gajendragadkar Commission, 196727

On 6th November, 1967 this Commission was appointed:

(i) for the purpose of making an assessment of the development programmes to the various regions of the state and to recommend steps necessary to give assurance that the resources available to the State Government are being shared equitably and also to convey a sense of equal participation in the integrated development of the State; and

(ii) to examine the existing recruitment policies of government and recommend measures for giving an equitable share to the various regions and backward classes in government employment.

In its report, the Commission recommended that a high power Committee should be appointed to make a list of backward c1asse.s on the following criteria: (a) economic backwardness; (b) the occupation or

195 occupations pursued; (c) area of permanent residence; (d) number of students per thousand of the population; and (e) caste in case of the Hindus.

Wazir Committee, 196928

Acting on the suggestion of Gajendragadkar Commission the State Government appointed a Committee headed by J.N. Wazir in February 1969. The recommendation of the Committee were submitted in November 1969, The government enacted the J&K Scheduled Castes and Backward Classes (Reservation) Rules, 1970 and reserved vacancies for the Schedules Caste and backward classes in each job, class category and grade in the State services in the following ratio: (a) Schedule Castes eight percent, and (b) backward classes 42 percent (including two percent for the permanent residents of Ladakh). In its report, the Committee had classified backward classes into six broad categories as follows:

(a) Traditional Occupations

(b) Social castes

(d) Pensioners

(e) Areas adjourning the ceasefire Line (f) Bad pockets

The recommendations were challenged in the High Court and the Supreme Court found fault in the rules.

Anand Committee, 197629

In August, 1976, the State Government appointed a Backward Classes Committee headed by Justice Adarsh Sein Anand to advise on the removal of the various anomalies in the Act of 1970 as ordered by the Supreme Court. It asked the Committee to make recommendations with

196 regard to the following issues: (a) to determine the criteria to be followed in deciding backwardness: (b) to identify classes; (c) to categorize backward classes and suggest safeguards for giving benefits to the really deserving only; and (d) to examine the question of reservation in government posts at every stage. The Committee was of the view that the six categories, made by the Wazir Committee, could be cut down to two broad categories as under:

(a) Twenty two weak and underprivileged classes; and

(b) Residents of backward areas, i.e. (i) bad pockets, and (ii) areas near the line of actual control.

KARNATAKA

Miller Committee, 191830

On the basis of representations received from aggrieved communities in August 1918, the Maharaja of Mysore appointed a Committee under the Chairmanship of Sir L.C. Miller then Chief Justice of Mysore to recommend steps for adequate representation for non- Brahmins in the services of the state. The Committee was asked to examine the following questions also: (a) changes required in the then rules of recruitment to the public services; (b) special facilities needed to encourage higher and professional education among the members of the backward classes; and (c) any other special steps needed to increase the representation of the backward communities in the public service without materially affecting the efficiency, due regard being paid also to the general well being accruing to the state by a wider diffusion of education and a feeling of increased status would thereby be produced in the backward communities.

After almost a year (in July 1919) the Committee submitted its

197 report. The state government accepted its recommendations that the term backward communities should be taken to include all communities in the state other than Brahmins, Anglo-Indians, and Christians. On the basis of its report, the Government issued order in 1921 extending special facilities to education and recruitment in state services On the basis of lists drawn by the state of Mysore, the present state, Karnataka prepared a uniform list of backward classes for the whole of state This list was struck down by the Mysore High Court and a similar attempt made in 1959 also met the same fate.

Nijalingappa Committee, 196131

The state Government, under the Chairmanship of S. Nijalingappa formed a Committee in January 1960, the terms of reference being to suggest (a) the criteria to be adopted in determining which sections of people in the state should be treated as socially and educationally backward and (b) the right manner in which the criteria thus indicated should be followed to enable the state government to determine the person, who should secure such preference, as may be determined by government to technical institutions and appointment to government services.

Through its interim report submitted in February 1960, the Committee stated "Hence, the Committee after examining some criteria and the after prolonged discussions indicated that classes should be listed only on the basis of their castes or communities and the backwardness judged on the basis of the percentage of literacy and their representation in government service. The Committee suggested 36 percent reservation for 35.34 percent population. The final report of the Committee was submitted to the government in May 1961, in which some 214 castes

198 under article 15(4) and 185 castes under article 16(4) were recommended and the communities were divided as backward and more backward, the former assumed to be 50 percent for the purpose of Article 15(4) and the latter 45 percent for the purpose of article 16(4). On reservation recommendations were as below, apart from the reservations to SC's and ST's.

Mavanur Commission, 197532

Being a member of the small community of urrus, in 1969, D. Devaraj was the first non-Lingayst and non Vokkaliga legislator to become the Chief Minister of Mysore State. He remained the Chief Minister till 1980. During his tenure, he sedulously cultivated the faith of minority backward communities without raising the opposition of the dominant communities. He inaugurated and participated in several caste conferences and many castes organized and founded their own organizations Devaraj encouraged many caste association by granting liberal funds for the construction of hostels for the benefit of poor students of these communities.

In 1972, he constituted the first Backward Classes Commission under the Chairmanship of L.G. Mavanur in response to the regular demand of the people as the existing occupation cum income test of backwardness was most unsatisfactory, The Commission presented its voluminous report in 1975, listing the backward classes under three categories, viz. backward communities, backward castes and backward tribes, and suggested compartmental reservations for each of these groups.

The classification of backward classes was done on the basis of the education level. The State average of student passing SSLC examination

199 in April 1972 was 1.69 per thousand of State population. The Commission said that a caste or community whose student average per thousand of its population passing at the April 1972 SSLC examination is less than the State average, should be treated as educationally backward. After satisfying themselves about the social backwardness by applying the multiple tests, castes and communities were categorized into three (a) backward communities whose student average per thousand of population was below State average, but 50 percent of the State average; (b) backward castes, whose student average per thousand of population was below 50 percent of the State average; and (c) backward tribes whose students average was less than 50 percent of State average, except Dombars and Voddars and who were nomadic and denotified tribes.

Venkataswamy Commission, 198533

The Supreme Court in the judgement of K.C. Vasanth Kumar v. State of Karnataka (1985), asked the Karnataka government to redetermine the reservation of seats and posts in the state. Accordingly the Karnataka 'Government constituted the second Backward Classes Commission chaired by a retired Judge, T. Venkatswamy to find out the OBCs in Karnataka and suggest measures for their upliftment. The Commission indentified 33 percent of the State population as OBCs, derecognised many castes and suggested 27 percent reservation for them in place of 49 percent. It divided OBCs in four groups (A,B,C &D) in place of prevailing three (backward communities, back-ward castes and backward tribes). A new 'backward special group' was also created Numerically strong, politically influential and economically better Vokkaligas and 35 other castes were excluded from the list of OBCs since it was found that these castes were well-off without any special treatment being given.

200 In this process, Vokkaliga and other excluded castes organized a number of bandhs and pressurized the ruling Janata Party government for rejecting the Commission's report. The Janata legislators belonging to Vokkaliga caste threatened to leave the party if the report was implemented.

Ultimately, the Karnatka government rejected the report on 7th October, 1986, and in its place started a new policy which benefited five categories of OBCs covering 73.5 percent lf the State population by reserving 50 percent of jobs for them with annual income of Rs. 10,000 except in the case of backward tribes. This was also applicable to the most backward category. Some of the forward caste members engaged in inferior occupations were also added in the list of beneficiaries and hence 5 percent posts and seats were reserved for them.

Chinnappa Reddy Commission, 199034

This Backward Classes Commission chaired by Chinnappa Reddy, dealt with the question of economic criterion for reservation at some length. It suggested that the following occupation groups may be added in the list of Socially and Educationally Backward Classes for the purpose of benefits of reservation. "Agricultural labourers not owning any land or not owning more than one hectare of rain fed dry land or its equivalent, hand loom weavers not owning more than two looms and working for wages or on piece rate basis, construction workers, automobile drivers, conductors and cleaners, auto and cycle rickshaw drivers, employees in factories and shops and establishment (excluding those employed in managerial, supervisory or ministerial capacity), workers engaged in road, bridge and railway track work and irrigation projects, pushcart, pavement and street hawkers and vendors, carpenters,

201 blacksmiths, mechanics, plumbers, electricians and the like employed on wages hamalis, those engaged in medical occupations such as sweepers, and cobblers, those engaged in the occupations those engaged in domestic service and all other manual workers employed on daily wages."

Also, the Commission recommended that no student should be given the benefit of reservation under Article 15(4) or under Section 16(4).

(i) Either of whose parents is a class I or Class II Officer in the service of the government or holds an equivalent post in a public sector undertaking or is employed under a private employer and draws a salary which is not less than that of a class II officer.

(ii) Either of whose parents is a professional, i.e. (a) doctor, (b) lawyer, (c) charted accountant, (d) income tax consultant (e) financial or management consultant (f) dental surgeon and (e) engineer or architect.

(iii) Both of whose parents are graduates.

(iv) Either of whose parents is assessed to sales-tax.

(v) Either of whose parents is assessed to income-tax.

(vi) Either of whose parent or both together own more than 8 hectares of rainfed dry land or its equivalent.

KERALA

Kerala reservation policy became the subject of an acute judicial controversy so much so that the government appointed one Committee and three BC Commissions. The problem is still persistent in the State for inclusion and exclusion in the list of beneficiaries of the preferential

202 treatment and determination of creamy layer. The All India Muslim League leaders politicized the creamy-layer issue and it became a bone of Contentation in political arena.

Vishwanathan Committee, 196135

The Committee on Backward Classes was-appointed in June 1961, under the chairmanship of V.K. Vishawnaathan and was asked to identify the backward classes and suggest measures for the improvement of their conditions. The Committee submitted its report in October 1963. The prominent recommendations were: (a) 40 percent of the seats in technical and professional colleges should be reserved for students of the other backward classes and 10 percent of seats for students belonging to the SCs and STs; (b) The above reservation should be to posts under the State Government also; (c) Appointment of an Expert Committee to go into the question of reclassification of backward communities. Government of Kerala accepted the recommendations of the Committee but restricted reservation to 25 percent seats for the backward classes.

Pillai Commission, 196536

The state government appointed a Commission under the chairmanship of Shri G. Kumara Pillai in July 1964 which submitted its report in December, 1965. Its main recommendations were: (I) It classified 91 Communities as backward and stipulated that the benefits should be extended only to those members of the backward classes whose aggregate family income was below Rs. 4,200 per year; and (ii) In technical and professional institutions 25 percent of the seats should be reserved for OBCs. It also indicated separate quotas for various categories of OBCs in the allocation of these seats.

The state government accepted the above recommendations with

203 the modification that the income ceiling of Rs. 4,200 was raised to Rs. 6,000 per annum. It may be noted that the High Court had desired the State Government to institute an enquiry for granting educational benefits to OBCs under Article 15(4) of the Constitution only. In view of this State Government kept reservation at 40 percent level in government jobs.

Damodaran Commission, 197037

After two years, in 1967, the Kerala High court suggested the appointed of yet another Backward Classes Commission and the State government then appointed third BC Commission, under the chairmanship of M.P. Damodaran, in October 1967. This Commission submitted its report in June 1970.

It found the following factors responsible for social backwardness for the purposes of Article 16(4): (a) Absence of requisite educational attainments (test of education); (b) Absence of money or wealth (economic test); (c) absence of ability to appropriate an adequate number of appointments (test of appropriation of appointments); and (d) caste disability, occupational stigma, and social taboos acting as obstacles in the filed of education.

But social backwardness continued to be a matter of controversy in Kerala. Some of the populous and advanced castes like the Ezhavas exerted pressure not to disturb their privileged status as a backward community. The Administrative Reforms Committee (ARC), appointed by the Government of Kerala, realizing the evils and drawbacks of caste as the grounds for backwardness, suggested the economic criterion. This resulted in a prolonged and bitter conflict between the Ezhavas and the Nairs. Further, the dominant castes, irrespective of the fact whether they

204 were actually economically, educationally and socially backward, managed to enjoy the concessions accorded to the backward classes because of their political influence. Owing to political pressure, all the backward communities in Kerala accepted the Ezhavas as backward.

MADHYA PRADESH

Mahajan Commission, 198038

State Government appointed a Backward Classes Commission under the chairmanship of Ramjee Mahajan in November 1980 for drawing list of backward classes and suggest measures for their upliftment. The Commission, identified 254 castes and sub-castes as backward classes and suggested reservation of 35 percent of the seats for them in educational institutions. It also wanted the same percentage of government and semi-government services to be reserved for them.

The Commission used the caste criterion for identifying backward classes, and suggested the exclusion of prosperous groups from the benefits of reservations, It suggested that the benefits of reservation should be extended only to the children of those who were not income-tax payers or who owned below ten acres of irrigated and non-irrigated land, it also recommended the grant of scholarships and the provision· of hostel facilities.

In year 1984, the state Government announced reservation of 25 percent of the jobs for the backward classes instead of 35 percent as suggested by the Commission. The anti-reservation took the matter to the streets and Courts. The Bhopal High Court asked the state Government to refrain from bringing the reservation policy. Change of leadership in Congress (1) also supported the anti-reservationists. If the government plan for reservation was executed, it would mean 65 percent on the basis

205 of caste (SCs: 22.5 percent,STs:7.5 percent and OBCs:35 percent). The government also proposed to reserve 4 percent for the economically backward, 5 percent for ex-servicemen, 3 percent for freedom fighters and ‘technical' hands and 1 percent for miscellaneous categories. On a whole it became 78 percent reservation of posts and seats. It was not justified as only 22 percent seats and posts were left for open competition. In 1993, the Government of Madhya Pradesh declared that 50 percent posts will be filled through open competition.

MAHARASHTRA

The movement of backward class in India originated in Maharashtra and Tamil Nadu. Omvedt considers Maharashtra and Tamil Nadu to be states where rural impoverishment was the maximum. The Satya Shodhak Sanjay, founded by Jyotiba Phule, provided organization and leadership to backward caste like Malis, Telis, Kumbis, etc. They struggled against Brahminical dominance and created in the backward classes an awareness of their genuine rights. They prepared the social base for the leadership of Dr. Bhimrao Ambedkar.

Deshmukh Committee, 196139

OBCs of Maharastra whose number grew from 125 in 1953 to 198 in 1967 also mobilized themselves as social groups. The government policy was to shift from the caste to the economic criterion. In November 1961, the State Government appointed a Backward Classes Committee, under the Chairmanship of B.G. Deshmukh, to report on the reservation of backward classes in government jobs. This Committee, in its report of January 1964, grouped backward classes into four categories: (i) Scheduled Castes and Neo-Budhists, (ii) Scheduled Tribes, (iii) denotified and nomadic tribes, and (iv) Other backward communities. It

206 also recommended that reservation in government services and educational institutions for different categories of backward classes should be linked to the percentage population in the State.

State Government broadly accepted the recommendations and made the reservation in state services and educational institutions for four categories of Backward Classes, Viz., the SCs and neo-Buddhists (13 percent), the Scheduled Tribes (7 percent), denotified and nomadic tribes (4 percent), and other backward communities (10 percent) Government issued orders that 80 percent of all vacancies should be reserved for Economically Weaker Sections of society. These weaker sections were defined as families whose income was less than Rs. 200 per month. Where adequate number of suitably qualified candidates were not available to fill 80 percent of reserved vacancies from persons with family income below Rs. 200 per month, preference for the balance of reserved seats was to be given to candidates whose family income ranged from Rs. 200 to 400 per month. In this order, it was also clarified that 80 percent reservation was inclusive of earlier reservations made for other Backward Classes, Scheduled Castes, Scheduled Tribes, etc.

PUNJAB

In 1951, the Government appointed a Committee to identify the backward classes in the State. The criteria applied for the identification of backward classes were economic, educational and social backwardness. On the basis of its recommendations, the government declared 14 castes as OBC, consisting of 2 percent of the population and suggested the same percentage of reservation. The government accepted the recommendation and accordingly only 2 percent seats and posts were reserved for OBCs. Similar percentage of concessions were given in

207 respect of admission to educational institutions.

Harcharan Singh Commission, 197540

In its fourth report in 1975-76, Punjab Vidhan Sabha appointed a Committee on welfare of Scheduled Castes, Scheduled Tribes, and the Backward Classes under the Chairmanship of Harcharan Singh. Finding inadequate representation of the backward classes in relation to their population it recommended 15 percent reservation for them in jobs and education. The government found it difficult to accept this recommendation as it had already provided for reservation upto 25 percent for the SC's and upto 20 percent for retired army personnel. It, therefore, continued with its policy of reserving 5 percent of the seats in educational institutions and 5 percent of initial appointments in public service. It also provided for two percent reservation in promotions upto Class I. It further decided to maintain a roster of all vacancies meant for SCs and OBCs and in the form of a running account, year by year, for each category or posts. In 1993, reservation for OBCs increased to 23 percent in Punjab.

TAMIL NADU Tamil Nadu has been the pioneer in providing special concessions to OBCs. For the welfare of depressed or deprived sections of the society the first such step was taken by Madras Government with the framing of Grant-in-Aid Code in 1885 to regulate financial aid to educational institutions providing special facilities for students of depressed classes. Subsequently in 1921, action on a resolution passed by the state legislative Council, Madras government took steps for higher representation of non-Brahmins in Government services. The scheme was reviewed in 1927 and the scope of reservation was enlarged further,

208 dividing all the communities in the state into five broad categories to make separate quota for each category. The Madras State has passed the Communal Government Order in 1927 and 1947 to distribute the posts and seats among the various communities to strengthen distributive justice and also to break up the monopoly of few communities. By the- time Independence was achieved, the services and professions, especially in the southern states had become to some extent representative of all the important communities of the area. Through the Communal Government Directive, it was intended to achieve fair just and equal distribution of educational facilities and government jobs, even the Brahmins got 15 percent as against their population of 3 percent. But, the Communal Government Order was attacked as being ultra vires of the Constitution in the famous case of Champakam Dorairajan v, State of Madras. After the separation of Andhra Pradesh, the Government of Madras ordered that 16 percent of all posts under the State Government should be reserved for Scheduled Castes and Scheduled Tribes and 25 percent for Backward Classes. For admission to Medical Colleges, etc., the earlier system of linguistic-cum-district basis was discontinued in 1960 and orders were issued for reserving 15 percent seats for Scheduled Castes and Scheduled Tribes and 25 percent for Backward Classes. The above scheme of reservation was struck down by the Supreme Court and subsequently the State Government decided in 1951 that henceforth reservation should be made for Scheduled Castes and Backward Classes only. Depending upon 1951 census and in the wake of the separation of Andhra Pradesh from Tamil Nadu in 1954, the reservation was altered to 15 percent for SCs and STs and 25 percent for OBCs.

209 Sattanathan Commission, 196941 In November 1969, the State Government appointed BC Commission under the chairmanship of A.N. Sattanathan. The Commission, in its report of 1970, used educational and social backwardness and the nature of the occupation continued traditionally by a majority of the members of a caste as the main criterion of backwardness. It held that to guess that there was no social and economic or educational backwardness outside the fold of the Scheduled Castes was to betray a total ignorance of Indian social conditions. As for economic backwardness, it kept most of the backward classes under the occupational categories newly listed by the Mysore government as socially backward, thus: (a) actual cultivators, (b) artisans, (c) petty businessmen, (d) those who perform inferior, and (e) those engaged in any other occupation involving manual labour. It recommended 33 percent reservation for the backward classes. Sattanathan Commission divided the backward classes into two categories (a) backward classes, and (b) most backward classes. It suggested 17 percent reservation for the backward classes and 16 percent for the most backward classes. It did not support reservation on the basis of population as in the case of the Scheduled Castes and the Scheduled Tribes. Most of the backward classes have made no progress worth the name and their condition even now is worse than that of the Scheduled Castes. Ambashanker Commission, 198242 Following the decision of Supreme Court, the government Constituted a 21 member Backward Classes Commission under the Chairmanship of J.A. Ambashanker to re-evaluate the classification of backward classes in the State and to re-assess their reservation quota of

210 50 percent. The Commission submitted its report in February 1985 and advised for the reserved quota to be slashed to 32 per cent. The Finance Minister announced the Government's acceptance of the Supreme Court's ruling that the reservation for the backward classes and the Scheduled Castes and the Scheduled Tribes in total should not exceed 50 per cent. The Tamil Nadu government, passed orders re-affirming the reservation of 50 percent for OBCs in July 1985. On the grounds of Indra Sawhney judgement reserved quotas in Tamil Nadu was limited with in 50 per cent of the available posts. But it was totally against the political arithmetic of AIADMK and DMK leaders. They asked for exception from the 50 percent limit and organized public rallies. The Tamil Nadu Legislative Assembly made an enactment of the Constitutional amendment and inclusion of its Reservation Act in the 9th Schedule of the Indian Constitution. The 85th Constitutional Amendment was passed to save Tamil Nadu’s 50 percent seats and posts reserved for OBCs besides 19 and 1 per cent for ST's being the total 70 per cent. Other States and Union Territories43 Regarding eight others states and Union Territories which have notified lists of Other Backward Classes without ordering a formal inquiry into their conditions, the position is briefly as follows. Before the implementation of Mandal Commission's recommendations some Indian States like Assam and Union Territories like Pondicherry felt educational backwardness as the most important aspect of backwardness and reserved some seats for the educationally backward in educational institutions. They have made no such reservation in government jobs, Haryana has provided for 10 per cent reservation in government services and 2 per cent in professional and technical institutions for OBCs. Himachal

211 Pradesh has reserved 5 percent of all posts for OBCs and also extended some educational concessions to Backward class students. Before 1993, in Delhi, Meghalaya, Orissa and Rajasthan, the backward c1asses were not getting any preferential treatment in the context of appointment to public jobs and admission to educational institutions. But, they do enjoy certain concessions regarding school fees, books, mid-day meals, etc. In 1961, both Delhi and Orissa which had earlier drew the list of OBCs on the ground of caste basis this situation continued almost till 1993. Many other states like Arunachal Pradesh, Mizoram, Nagaland, Sikkim, Tripura and West Bengal had not made any list of other backward classes till 1993. None of the Union Territories has done so. These states do not consider backward classes as calling for state action in respect of their socio-economic conditions. The backward classes have never come up as a political force in these states. Nor that there is no backward class lobby, but it has not acquired any perceptible influences so far. There, OBCs remained out of special treatment. Now 27 percent jobs have been reserved for them in the central services which prepared background for reservation in all states. It has taken this position even during the Chief Ministers Conference or various other platforms. At present, 22 per cent seats and vacancies are reserved for OBCs in West Bengal also.

212 REFERENCES

1. Sheshadri, K. Political Linkages and Rural Development, National

Publishers, New Delhi, 1976, p. 131.

2. Protection of Civil Rights Act, 1955. 3. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989.

4. The Bonded Labour System (Abolition) Act, 1975.

5. The Child Labour (Prohibition and Regulation) Act. 1986.

6. The Minimum Wages Act 1948.

7. The Panchayat (Extension to the Scheduled Areas) Act, 1996.

8. Report of the Ministry of Social Justice and Empowerment.

9. Report of National Commission for SCs and STs.

10. Ibid.

11. Ibid. 12. Naidu, R.V.K., Empowerment of Scheduled Castes (Dalit Studies),

Kalpaz Publications, Delhi, 2004, p. 273. 13. Singh S.K. and Singh A.K. – OBC Women Status and Educational Empowerment (New Royal Book Company, Lucknow), 2004, pp.

80-82.

14. Report of Kaka Kalelkar Commission on Backward Classes, 1953.

15. Report of Mandal Commission on Backward Classes, 1980.

16. Report of Ranganath Mishra Commission on Minorities, 2005. 17. Report of Sachar Committee on the Social Economic and

Educational Status of the Muslim Communities India, 2006. 18. Report of Chhedi Lal Commission on Backward Classes, 1975

(U.P.).

19. Report of Mungeri Lal Commission, 1971 (Bihar).

213

20. Report of Bakshi Commission, 1972 (Gujarat).

21. Report of Rane Commission, 1981 (Gujarat). 22. Report of Manohar Prasad Commission on Backward Classes,

1968 (Andhra Pradesh).

23. Report of Veerappa Committee, 1965 (Andhra Pradesh).

24. Report of Murlidhar Rao Commission, 1982 (Andhra Pradesh).

25. Report of Gurnam Singh Commission, 1991 (Haryana). 26. Report of Himachal Pradesh Government on OBCs 1970

(Himachal Pradesh).

27. Report of Gajendra Gatkar Commission, 1967 (J&K).

28. Report of Wazir Committee, 1969 (J&K).

29. Report of Anand Committee, 1967 (J&K).

30. Report of Miller Committee, 1918 (Karnataka).

31. Report of Nijalingappa Committee, 1961 (Karnataka).

32. Report of Mavanur Commission, 1975 (Karnataka).

33. Report of Venkataswamy Commission, 1985 (Karnataka).

34. Report of Chinappa Reddy Commission, 1990 (Karnataka).

35. Report of Vishwanathan Committee, 1961 (Kerala).

36. Report of Pillai Commission, 1965 (Kerala).

37. Report of Damodaran Commission, 1970 (Kerala).

38. Report of Mahajan Commission, 1980 (Madhya Pradesh).

39. Report of Deshmukh Committee, 1961 (Maharashtra).

40. Report of Harcharan Singh Commission, 1975 (Punjab).

41. Report of Sattanathan Commission, 1969 (Tamil Nadu).

42. Report of Ambashankar Commission, 1982 (Tamil Nadu).

43. Report of the other states and union territories.

214 PART VII

CHAPTER – I

EVALUATION OF RESERVATION POLICY AS MEANS OF EMPOWERMENT TO BACKWARD CLASSES

In view of the fact that the Constitution sanctions reservations for the advancement of backward sections of the society, it could reasonably be expected that no further justifications were needed to defend any legislative or executive effort in that direction. Experience has, however, belied our expectations. Soon after the commencement of the Constitution a lacuna was found in the reservation provisions and that had to be remedied by an amendment of the Constitution. Even after the amendment the provisions are not wide enough to comprehend all situations requiring affirmative action. Inadequacy of these provisions, even in the limited area which should have most genuinely fallen within them, has been amply demonstrated in State of Kerala v. N.M. Thomas. Express provisions for affirmative action may be subjected to narrow interpretation applying the maxim expressio units exclusio alterius. Moreover, advanced or privileged sections of the society, precluded from the benefits of reservations recommended by Mandal Commission have, under the garb of challenging the implementational aspect of the constitutional provisions sanctioning affirmative action, started in reality questioning the constitutional policy itself as a result of which the country had to face violent widespread demonstrations. Momentum against the constitutional policy appears to be gathering strength day by day under different pretexts.1

215 For these reasons we shall have to travel beyond the letter of the Constitution to defend and justify affirmative actions that are urgently needed either to remove the existing grossly unjust inequalities in our society or at least to raise all sections of society to the level of human existence and to least them their due ‘dignity’ expressly envisaged in the preamble to the Constitution.

The Question of Merit

According to the meritarian principle of distribution, which can be traced back to Aristotle and was at its peak during the nineteenth century under the influence of individualist thinkers, social goods should be allotted on the basis of one’s merit and ability, whether natural or acquired. Leaving aside the general intricacies in the application of the principle, in such matters as admission to institutions of higher education or appointment to state services it will require that the candidates are selected on the basis of their individual merit, i.e., their ability in terms of achievement of certain grades or marks in an objective test, generally a test of intelligence plus knowledge-held for that purpose. Supporters of this principle claim that it assures best justice in so far as it allocates the rewards or goods on the basis of an objection criterion having nothing to do with such personal characteristics of an individual as his birth, race, colour, sex, casts, etc. They say that it also satisfies the justice precept of ‘treat like cases alike and different cases differently’ in so far as it provides a criterion of immediate relevance to the goods to be distributed. This principal assures the selection of the ablest persons from amongst a large number for the limited goods or opportunities available for distribution. It also assures a strong society and its overall progress in so far as it provides incentive for hard work and the development of superior mental and physical capacities.

216 Though on their face these arguments appear to be attractive, a close examination will expose that they suffer from a number of serious weaknesses. To begin with, the notion of merit itself is not as objective as it might appear. It is rather subjective. What is merit? Merit has no fixed or definite meaning free from variations. It is nothing but a criterion to achieve some predetermined social objective or value or to satisfy certain perceived social need. It does not control the objective, value, or need, set for achievement or satisfaction. For example, in a society suffering from under population due to long- term war or any other reason, production of more children may be a merit and parents may be rewarded for producing more children because the society needs an increased growth of population. Production of more than one or two children may, however, become a demerit in an overpopulated and underdeveloped society. Similarly, high grades or percentage of marks in educational examinations may be a merit for teaching assignment because the object is to have intellectually sound persons, but for a police or defence job where predominantly physically strong men are needed, physical strength and not the grades in examinations may be the merit.

To take one more example, suppose there are three boy claimants for one tickets of a cricket match show. To whom out of these should the ticket go on the basis of merit? To one who has the highest score in the last examination, or the one who has demonstrated exceptional potentiality to obtain better score in future, or the one who does not fall in either of these two categories but has demonstrated immense interest in cricket? An answer to these questions would depend on what our ultimate objectives are. If we want to encourage talent and effort by rewarding it, the boy with highest marks should get the ticket, If we want to encourage the effort and potential, the second boy must get the ticket. And if we

217 want to encourage sports, particularly cricket, the ticket must go to the third boy.

No more examples are necessary to bring home the point the so- called merit is subjectively determined in terms of the perceived social objectives, values, or needs and is bound to change with the changes in the latter.

This analysis of merit leads us to two conclusions. First, since merit is dependent upon the value, goal, or the objective to be achieved, a society or the dominant group in a society may set such objectives or goals for which the members of that group are most suitable and thus use the apparently objective looking criterion of merit to exclude other groups from the social good. For example, a warrior class or race in power may say that they need physically strong and well- built men in all walks of public life and administration and accordingly all positions will be filled on the basis of physical strength or prowess. On the face of it physical strength appears to be an objective criterion, but in fact it may result in constant and uniform exclusion of the undernourished and the poor from these positions because there is a close proximity between being well-fed and well-built and between undernourished and weak.

Second, since merit is determined for serving the perceived social needs (or values) of the day, satisfaction of such needs is the end and merit is simply a means to achieve that end. For example, efficiency in public administration may be an end and to achieve that end standards that may ensure such efficiency may be set as merit: A society may find that having met the ordinary common needs of the community, it needs highly intelligent and sophisticated doctors, engineers, or lawyers to meet the special needs. To achieve that end it may decide that to these course

218 persons must be admitted solely on the basis of their intelligence measured through a pre-admission test or on the basis of marks or grades achieved in the previous school examination or both. Conversely, a society may find that it does not need as much intelligent and sophisticated doctors, engineers, or lawyers, as it needs the ones who can serve the day-to-day ordinary needs of the rural and tribal people and may accordingly decide that persons to these course should not be admitted on the basis of intelligence alone, but also on the basis of their suitability to serve the rural and tribal people. And if the society finds that persons with urban or affluent background are not suitable for the job because of their unwillingness to serve the rural and tribal people as well as their attitude towards them, it may decide that persons with rural or tribal poor background only will be admitted to these courses or that preference will be given to them. Thus while in the first case intelligence is the merit for becoming a doctor, engineer, or lawyer, in the second, rural or tribal poor background acquires priority over intelligence and becomes merit.2

To take one more example: suppose a country is not interested in high-class quality cloth but it wants that everyone must be clad even if the cloth is coarse. In such a situation those entrepreneurs who can produce cheap cloth even if it is coarse should have priority, if a question of granting a textile industry licence arises, over those who have highly sophisticated machinery and technical know-how to produce fine quality cloth beyond the common men’s reach. Thus the capacity to produce coarse but cheap cloth becomes a merit as against the capacity to produce high quality cloth.

These examples should leave no doubt that merit varies with the variance in the social needs. A society has to first determine and find out its needs and then determine the best means to ensure their satisfaction. It

219 cannot talk of merit in the abstract. A society like ours which is under a constant and serious threat of disintegration because only certain classes or groups are domination in every walk of life leaving no place or even hope for the rest of the classes or groups may find that keeping the society together is much more important than high standards of efficiency and accordingly it may look for the means that ensure its integration and prevent disintegration. One such means may be larger induction of excluded groups in all walks of public life so that they also develop a sense of involvement and stake in the present societal arrangements. Operationalization of this means may temporarily require reservation for the excluded groups: whether the reservation should be one hundred percent or less is then a matter for determination. But whatever method is adopted, membership of an excluded group, and not intelligence, becomes the merit for selection to the seats in educational institutions and positions in public services. A society must make this kind of decision on the basis of clearly and objectively ascertainable facts lest the decisions lead to injustice, bad blood and even quicker disintegration. But that is a different matter altogether. What is necessary to be remembered at this juncture is the fact that merit changes with the context and that it is simply a means to achieve certain ends and not an end in itself.

Whether we look at the existing social structure or at the structure towards which our society is fast moving the meritarian principal of social justice is incongruous. Pressing for the application of that principal to the exclusion of others is out of place, more so when its application has been diluted in view of its weaknesses and new social arrangements are being worked out even in those societies which were dominated by it for quite sometime. In a society based on vast and well-rooted inequalities of birth, sole application of the meritarian principal will mean nothing but

220 legitimizing such inequalities and ensuring the lion’s share to the privileged few and a very small or no share to the disadvantaged masses. To minimize the existing inequalities and bring about a just social order we shall have to give due recognition to the claims and needs of those unfortunate sections of share which have been denied equal share and equal opportunities for centuries. Demand for the application of meritarian principal of social justice coming from those sections of the society who have been enjoying for long all the benefits and privileges based on birth regardless of any individual ability or merit is certainly unfair and unjust.

Social Justice and the Constitution

By the time our Constitution makers began their deliberations the weaknesses of the meritarian concept of market and individualistic society leading to widespread social injustice had already been expose by thinkers like Saint-Simon, Durkheim, the Webbs, Tawney, Laski, and Green. These thinkers had also drawn an alternative plan for a new society, which will assure greater equality to all and take into account the existing disabilities of the people. Laying down the foundations of a social welfare state they emphasized that ‘social good results from the national coordination of the activities of altruistic men, rather than from the free play of individual self-interest’. These ideas had immensely impressed the leading figures in our freedom struggle as well as Constitution makers. They thought that the solution to Indian problems lay in the implementation of these ideas.

The same concept has been expressed with greater vigour and clarity in the Directive Principal of State Policy contained in Part IV of our Constitution. The directives in no uncertain terms require the state,

221 inter alia, to promote the welfare of the people by securing and protecting a social order in which justice, social, economic and political, should inform all the institutions of national life; to reduce economic disparities; to make available adequate means of livelihood; to distribute the ownership and control of material resources so as to subserve the common good; to operate the economic system in such a away that it does not result in the concentration of wealth and mean of production to the common detriment; to protect health and strength of workers and children of tender age against abuse;3 to provide for legal assistance and aid, to provide right to work, to education and to public assistance in cases of unemployment, old age, sickness, and disablement and in other cases of undeserved want;4 to secure just and humane conditions of work and provision for maternity relief;5 to provide for living wages and conditions of work ensuring decent standard of life and full enjoyment of leisure and social and cultural opportunities;6 to promote with special care the educational and economic interests of the weaker sections of the people and their protection from social injustice and all form of exploitation;7 and to raise the level of nutrition and the standards of living and public health.8 These principles can be enforced notwithstanding the general right to equality in Article 14 and right to the six freedom in Article19.9

The Constitution also ensures due representation of the weaker sections (Scheduled Castes and Scheduled Tribes) in Parliament and state legislatures through reservation of seats. It also directs for their induction into state services and provides special administrative safeguards for them. A backward class Commission to make recommendations for improving the conditions of the backward classes and a Commission to report the administration of scheduled areas has also been conceived.

222 special provision have also been made for such minorities as Anglo- Indians.

All these provisions make it amply clear that our Constitution does not leave the individual at the mercy of matsya nyaya, representative of a competitive model of society. It assigns a prominent role to and imposes heavy responsibility upon the state to assure a dignified life to each individual irrespective of what he deserves on meritarian considerations. It envisages equal respect and concern for each individual in the society and if the attainment of that goal requires special attention to be paid to some that ought to be done. The provisions requiring special attention are not an exception to the general scheme of the Constitution but are an integral part of it and may be called a basic structure in Kesavananda Bharati terms. They in fact represent the central ideology that worked in the mind of the Constitution makers for eradicating our age- old social injustices through an enlightened constitutional order.

Reservation:

Some people argue that affirmative action is not bad but quota or reservation is. They would like the state to provide all kinds of facilities such as financial help, more educational avenues, better health care, improved living conditions, free coaching for equipping them to get into higher education, jobs, etc. to the backward groups so that they may have equality of opportunity in open competition with others. The argument is goods in so far as it supports affirmative action minus quota or reservation, but it has its own limitations and cannot be accepted as such for more than one reason. First, under the existing social arrangements it is impossible to think of absolute or near- absolute parity in opportunity. Family background, environment, heredity, and many other things, which

223 are beyond social regulation, have an important bearing upon one’s personality and abilities. Facilities of the kind envisaged above cannot completely remove the impact of these factors. Second, there is no qualitative difference between the policy of quotas or reservation and providing other facilities. Special facilities can also be attacked on the same grounds as quotas or reservations.

Third, due to resource constraints, the state is unfortunately not in a position to provide all the inputs to enable the disadvantaged segments of society to uplift themselves and compete from a level of equality with the privileged and the advanced ones. Indeed the state is not able to meet even the barest necessities of food, shelter, and health care, what to say of other facilities. Fourth, at the present stage, while certain groups are almost completely unrepersented in all walks of public life (such as higher education and administration), their induction cannot be postponed indefinitely to an uncertain future. Last, the special facilities programme, so long as it is based on casts lines, does not in any way support those who oppose quota or reservation on the ground that they compartmentalize society and harm the cause of social in the long run. For these reasons it may be submitted that the special facilities is by and large an argument to divert the attention of the policy makers from the immediate and important task of realizing the goal of social justice in our society.

The Efficiency Argument:

Although, the argument of efficiency advanced against affirmative action does not require separate treatment, it is necessary to counter the general impression created by its protagonists, especially because of the observation of Pathak J. in A.B.S.K. Sang (Rly) v. Union of India, that

224 efficiency of administration is the ‘paramount need’ to whose ‘primacy all else is subordinate’. We submit with respect that the paramountcy of efficiency over everything else as a social value or need of our society is neither empirically tested not clearly supported by the constitutional text. Though efficiency is an important value in so far as it assures greater production and better services, its importance has to be compared with and ultimately set against the significance of such other values as integration, prevention of discrimination, or eradication of stark social injustice. Through that exercise we might find that for us integration and rectification of socially harmful deprivation and injustices are as, if not more, pressing needs as efficiency. That was the demonstrable perception of the Constitution makers of the Indian reality and social needs which have not yet materially changed. Reference to ‘maintenance of efficiency of administration in Article 335 was not intended to project the paramountcy or primacy of efficiency over the need expressed in that Article, the induction of the Scheduled Casts and Tribes into the state services so as to give them due representation therein.

Even if we assume the paramountcy or primacy of efficiency, the connection between the existing tests for entry into the services and the efficiency of administration has not been empirically established. To quote Marc Galanter, who has been closely studying the affirmative programmes for over a quarter of a century.

The translation of lower academic accomplishment into inefficiency in administration is difficult to trace. It is not clear how well academic performance correlates with administrative talent. Nor is it clear that differences in the level of such are directly

225 reflected in efficiency or inefficiency of administration.

Moreover, he says: ‘In part the higher scores of others may reflect cultural disadvantages which are irrelevant to the business at hand; in part, the lower scores of beneficiaries may reflect a remediable lack of polish and experience rather than lack of ability.’ Similarly the Supreme Court, in the scintillating and inimitable style of V.R.Krishna lyer J. has rejected the argument that the existing tests for entry into state services are true indicators of merit or suitability. ‘Unfortunately’, said Krishna lyer J., ‘the very orientation of our selection process is distorted and those like the candidates from the SC&ST who, from their birth, have had a traumatic understanding of agrestic India have, in one sense, more capability than those who lived under affluent circumstances and are callous to the human lot of the sorrowing masses.’ According to him ‘elitists whose sympathies with the masses have dried up are, from the standards of the Indian people, least suitable to run Government and least meritorious to handle state business, if we envision a Service State in which the millions are the consumers.’ In his opinion, a ‘sensitized heart and a vibrant head, tuned to the tears of the people, will speedily quicken the development needs of the country’ and as a sincere dedication and intellectual integrity…not degrees from Oxford or Cambridge, Harvard or Stanford’ or similar Indian institutions are the major components of merit or suitability.

In making these remarks Krishna lyer J is not laying down any infallible alternative test of judging the suitability of the entrants who will assure the most efficient administration. But certainly he is passionately exhorting us to relate efficiency to our developmental needs and is exposing the irrelevance and inadequacy of the existing tests to the kind

226 of efficiency of administration we need. Had the existing tests been directly linked to efficiency of administration, our central administration would have been most efficient and a negligible percentage of the Scheduled Castes and Tribes only in recent years would have not eroded its efficiency to the extent alleged. ‘In the light of the many forces which effect administrative inefficiency’, says Galanter, ‘it seems appropriate to confront to guard against assertions about the effect of reservations with some skepticism if only the widespread tendency to attribute inefficiency in governmental operations to the presence of Scheduled Castes.

An additions allegation attributing inefficiency in the administration to reservations is made on the plea that they adversely affect the morale of other public servants who are actually superseded or work under the constant fear of such super session by their supposedly less qualified colleagues. But here again, as Galanter rightly suggests, without a careful empirical. Study it is difficult to say how much of the effect on morale is because of reservations and how much due to our prejudice towards the Scheduled Castes and Tribes. It may reasonably be assumed that our centuries-old heritage of treating the Scheduled Castes and Tribes as a subhuman, inferior lot must be working, at least subconsciously, in forming our attitude towards then when they participate with us as equals whether on the basis of reservation or otherwise the attitude has nothing to do with the quality of the Scheduled Caste or Tribe incumbents.10

Finally, recalling the Constitutional scheme outlined above, we respectfully agree with O. Chinnappa Reddy J. that in the name of efficiency we cannot introduce the vestiges of the doctrine of laissez faire and create … a new oligarchy . Efficiency has many facets and one is yet to discover an infallible test of efficiency which suit the widely differing

227 needs of a developing society such as ours.` And further , in the words of Varadarajan J. “public employment … should not be monopolised by any particular section of the people of this country in the name of efficiency , though efficiency cannot altogether be ignored.

228 PART – VII

CHAPTER-II

APPRAISAL OF RESERVATION POLICY AS A POTENT TOOL FOR EMPOWERING THE SCHEDULED CASTE AND SCHEDULED TRIBES

Social justice is an objective set in the Preamble of the Indian Constitution, which demands preferential treatment to the weaker sections to correct the historical imbalance existing in the society. The Constitution of India directs the Governments, Central and State, to take positive action to uplift the social, economic and educational status of the backward classes and to provide social, economic and political justice to the weaker sections of the society so that the level of their status may become equal to the rest of the society.

Empowerment of the weaker sections includes overall empowerment i.e. educational, economical, social, political and cultural empowerment. Several Constitutional provisions e.g. Fundamental Rights, Directive Principles and part XVI are concerned with the empowerment of weaker sections. Under these constitutional provisions, weaker section means Scheduled Castes11, Scheduled Tribes12, socially and educationally backward classes (SEBCs)13 and other backward classes (OBCs) and women and children.

Educational and Economic Empowerment:

Fundamental rights under Articles 15(3)14, 15(4)15, 16(4)16, 16(4A)17, 16(4B)18 and 21A19 are directly and indirectly concerned with educational and economical empowerment. Reservation of certain posts

229 exclusively for women is valid under Article 15(3) as it permits the state to make special legislation to protect women and children specially20. Provisions in the criminal law, in favour of women, or in the procedural law discriminating in favour of women, have been upheld21. Similarly, provisions providing for reservation of seats for women in local bodies or in educational institutions are valid22. Sexual harassment of the working women amounts to violation of the rights guaranteed by Articles 14, 15, and 23 (equality and dignity). The court has issued detailed directions on the subject23.

Article 15 (4) gives special recognition to the Backward Classes, Scheduled Castes and Scheduled Tribes and also recognizes protection of the interests of the Backward Class of citizens. Hon'ble Supreme Court has emphasized, Art. 15 (4) does not speak of castes, but only speaks of Classes and that ‘castes' and 'classes’ are not synonymous. Exclusion of caste to ascertain backwardness does not vitiate classification if it satisfies other tests24. The special provision may be by way of reservation of seats for them, or to grant them fee concessions in public educational institutions25.Therefore, reservation policy could be helpful to empower the weaker sections economically and educationally.

Article 16 (4) empowers the state to make special provision for the reservation of appointments of posts in favour of any backward class of citizens, if the said class is not adequately represented in the services of the state. But it should be remembered that the claims of the Scheduled Castes and the Scheduled Tribes should be taken into consideration consistently with the maintenance of efficiency of administration26. The reservations for backward classes should not be unreasonable27. Thus, this Article expressly permits reservation of posts in favour of the backward classes, although reservation was provided only in initial stage

230 not in promotion28.

The expression 'backward class' used in Art. 16(4) are not synonymous with 'backward caste' or 'backward community'. Therefore, to determine whether a section of population forms a 'class' for the purposes of Art.16 (4), a test solely based on caste, community, race, religion, and sex, descent, place of birth or residence cannot be adopted29. Under this Article, reservation was available only in initial stage of service i.e. selection. But in General Manager, Southern Railway v. Rangachari30 it was settled by Hon'ble SC that the words 'employment 'or 'appointment' are wide enough to include the matter of promotion, including promotion to selection post. Therefore, to meet out this direction held by SC, Article 16 (4A) has been inserted by 77th Amendment in 1995 to provide reservation in promotion for the Scheduled Castes and Scheduled Tribes and empowering the State to make provision for reservation in matters of promotion, to any class or classes of posts in the services under the state. Thus, the Scheduled Castes and Scheduled Tribes had been enjoying the facility of reservation in promotions since 1995. Relaxation in shape of standards of eligibility is also permissible for the Scheduled Castes and Scheduled Tribes31.

Article 16(4B) authorizes the State to consider the unfilled reserved vacancies as a separate class which shall not be considered together with the vacancies of the year in which they are being filled up to determine the ceiling of 50 per cent of the total vacancies of that year32.

Social and economic empowerment

Articles 1733, 2334, 2435 & 2536 and directive principles under Articles 3837, 3938, 39A39, 4240, 4341, 4542, and 4643 are concerned with social and economic empowerment. Article 17 refers to the social

231 disabilities historically imposed on certain classes of people solely by reason of their birth in certain castes, which precludes them from any kind of intercourse with people belonging to the so-called higher classes or castes. This Article knocks the whole problem of untouchability at the very bottom and throws it out lock, stock and barrel. It does not stop with a mere declaration but announces that this forbidden 'untouchability' is not to be henceforth practiced in any form, If it were so practiced it shall be dealt with an offence punishable in accordance with the law44. To implement this Article, in 1955 the Parliament enacted' The Untouchability (Offences) Act 1955' which later came to be known as 'The Protection of Civil Rights Act, 1955'.

Article 23 prevents discrimination against the oppressed forced labour and the traffic in human beings. As it is opposed to the dignity of the individual, this Article provides rights not only against exploitation of forced labour (begaar) but also to the wider category 'traffic in human means, and utilization of persons for one's own ends. The scope of this Article extends not only to the prohibition of 'traffic in human beings'. It is very much concerned with the backward classes because most of the workers belong to this class45. Since mere constitutional provision of Article 23 could not abolish the social evil of forced labour, the Bonded Labour System (Abolition) Act, 1976 was enacted in 1976.

The Supreme Court has issued elaborate guideline on child labour. Child labour shall not be engaged in hazardous employment. Article 24 expressly prohibited child labour in such factories, which are dangerous or injurious to their health. Child labour rehabilitation welfare fund shall be set up in which offending employer should deposit Rs. 20,000. Adult member of the family of such a child should be given employment46. The SC also issued directions· on education health and nutrition of child

232 labour47. Hon'ble Supreme Court also issued several directions in public interest litigation as to the children of prostitutes48.

Article 25 gives a constitutional guarantee and empowers the States to legislate on matters of social welfare and reform or for throwing open of Hindu religious institutions of a public character to all classes and Sections of Hindus.

Article 38 ensures that the function of Republic is to secure not only legal justice but social, economic, and political justice as well. Article 38(2) enables the state to have a national policy on wages and eliminate inequalities in various spheres of life49.

Article 39A was added to the Constitution pursuant to the new policy of the Government to give legal aid to economically backward classes of people.' This direction requires the state to provide free legal aid to deserving people so that justice is not denied to anyone merely because of economic disability.

Article 42 secures right to get just and human conditions of work and maternity relief. Citizens are entitled to enjoy good working conditions. This Article empowers the State to make provisions for securing just and human conditions of work and for maternity relief.

Article 43 secures rights for living wage, etc. for workers. Under this Article, workers shall get enough to lead a decent standard of life.

Article 45 secures right for early childhood care and education below the age of six years. It is the duty of the State to provide free education up to the age of 6 years and to provide special care for early childhood.

Article 46 provides for promotion of educational and economic

233 interests of Scheduled Castes, Scheduled Tribes and other weaker sections. An Act made to protect and preserve the economic interests of persons belonging to the Scheduled Castes and Scheduled Tribes and to prevent their exploitation would not be infringing Article 4750.

Cultural and social empowerment

Articles 2151, 2952, and 48A53 are concerned with cultural as well as social empowerment. The Scheduled Tribes are those backward sections of Indian population who still observe their tribal ways, their own peculiar customs and cultural norms. The tribal people have remained backward because of the fact that they live in inaccessible forests and hilly regions and have, thus, been cut off from the main currents of national life. It has been argued that it may be harmful to the tribal people if they are brought in indiscriminate contact with the outside world.

Thus, the Legislatures have been empowered to impose restrictions on the Fundamental Rights by Articles 19(1) (d), 19(1)(e), and 19(1)(i) in the interests of the Scheduled Tribes. The movement of people from the developed areas to the tribal areas may be restricted so that the outsiders do not exploit the tribal people. Laws have, therefore, been enacted prohibiting entry of the non-tribals into the tribal areas without permits, living of non-tribals permanently in the tribal areas and transfer of tribal land to the non-tribal people.

The expanded delineation of Article 21 includes right to live with privacy54, right to live with human dignity55, right to live in clean and clear healthy environment56 etc. Denial of right to succession to women of the Scheduled Tribes amounts to deprivation of their right to their livelihood. These tribal people are having their own distinct culture, language and script. They are very rich in traditional knowledge and

234 culture. Thus, the main characteristics of these people are their primitive way of living, nomadic habits, love for drink and dance and habitation in remote and inaccessible areas57. They need special provisions for safeguarding their interests. The need is to evolve ways and means to gradually adjust the tribal population to the changed conditions and integrate them slowly with the mainstream of the country without undue and hasty disruption of their way of life.

Political Empowerment

Other Constitutional provisions under Articles 164(1)58, 33059, 33260, 33561, 33862, 338 A63, 33964, and 34065 are, directly concerned with representation of the Scheduled Castes and Scheduled Tribes in the Parliament and the State legislatures. Specifically, Articles 330 and 332 provide for reservations of seats in the Lok Sabha and State Assemblies for the Scheduled Castes and Scheduled Tribes.

The provision for reservations of seats for the Scheduled Castes and Scheduled Tribes has been made to guarantee them a minimum number of seats. It does not deprive a member of Scheduled Caste or Tribe of his/her right to contest a general seat, which every adult citizen possesses, and he/she can contest for a general seat on the strength of the very nomination for a reserved seat.66 The reservation of seats expressly provided under Article 332 cannot be challenged on the ground of denial of right guaranteed under Art.1467.

It is the duty of state to take into consideration the Claims of the members of the Scheduled Castes and Scheduled Tribes in the matter of appointment68. Article 335 is to be read with Article 46, which provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular,

235 of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation.69

Article 338 and 338A provided that a Commission shall be appointed for the Scheduled Castes and Scheduled Tribes respectively by the President to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes and Scheduled Tribes by different law. This Commission shall present the reports to the President and make recommendations as to the measures to be taken for the amelioration of their conditions. Article 339 authorizes the State to appoint a Commission with regard to the administration of the Scheduled Areas and welfare of the Scheduled Tribes. Article 340(1) provides for Constitution of a Commission to investigate the condition of socially and educationally backward classes and to make recommendations, to the Union or any State, to remove such difficulties that they are facing and to improve their condition.

Indian Constitution provides a host of ground norms for the different categories of weaker sections. But most of the people of, these classes are not aware about it. If they are conscious about these provisions, only then can they avail benefit of these provisions and become empowered politically, economically and educationally. Here, civil society organizations and professional Social Work Institutions could play a vital role in imparting legal education among these weaker sections and could start a movement to make them aware about various Constitutional, judicial and legal provisions. They could play an active role in protecting and preserving their traditional knowledge and culture. Their cultural heritage may focus as the center of cultural tourism.

236 REFERENCES

1. Singh, M.P. Jurisprudential Foundation of Reservations, Indian Bar Review, Vol. 17, 1990, pp. 245-74. 2. Ibid. 3. Article 38 of Indian Constitution. 4 . Article 39 of Indian Constitution. 5. Article 41 of Indian Constitution 6. Article 42 of Indian Constitution 7. Article 43 of Indian Constitution 8. Article 46 of Indian Constitution 9. Article 47 of Indian Constitution 10. Singh Parmanand. Equality Reservation and Discrimination in

India, New Delhi, Deep and Deep Publications, 1985, p. 82. 11 Article 366(24) "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of this Constitution. The President may, with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races, or tribes or parts of or groups within castes races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. 12 Article 366 (25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution and Article 342 says,

237

“The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be." 13 As decided in Indira Sawhney, AIR 1993, SC 477, (1992) 3 SCC 217. 14 Nothing in this Article shall prevent the State from making any special provision for women and children. 15 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 Scheduled Tribes. 16 Nothing in this Articles shall prevent the state from making any provision for the reservation of appointment or post of any backward class of citizens, which, in the opinion of the State, is not adequately represented in the services under the State. 17 By 77th Amendment, inserted in 1995, this Article shall not prevent the state from making any provision for reservation. By 85th Amendment, inserted in 2001, reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the state in favour of Scheduled Castes and the Scheduled Tribes, which in the opinion of the State are not adequately represented in the services under the state, was also provided for.

238

18 As (4B), inserted in 2000 by 81st Amendment, this Article shall not prevent the state from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50 per cent reservation on total number of vacancies of that year. 19 Article 21 A, inserted in 2002 by 86th Constitutional Amendment, provides Fundamental Right to get education from the age of 6 to 14 years. 20 Union of India v. V.P. Prabhakaran, (1997) 11 SCC 638. 21 Girdhar v. State of AIR 1953 MB 147 (Section 354, (IPC), Yusuf v. State of Bombay, AIR 1954 SC 321,322 (Section 497, IPC), Choki v. State of Rajasthan, AIR 1957 Raj 10 (Bail). 22 Dattatrya v. State of Bombay, AIR 1953 Born, 311. 23 Vishakha v. State of Rajasthan, AIR 1997 SC, 3011. 24 M.P. Singh. (Ed.) I994. 1ndian Constitutional Law, New Delhi: Wadhwa & Company Law Publisher, p. 501. 25 Chatterjee Sarajit Kumar (Ed.). 1996. The Scheduled Castes in India, Vol.4 Delhi: Gyan Publishing House; p.509. 26 Article 335, Constitution of India. 27 1951, SCR 525; (51) A.SC. 226. 28 Indra Sawhney AIR 1993 SC 477, (1992) 3 SCC 217. 29 Singh M.P. (Ed.) 1994. Indian Constitutional Law. New Delhi: Wadhwa & Company Law Publisher, p. 5 I 8. 30 AIR 1962 SC p. 36. 239

31 Ram Bhagat Singh v. State of Haryana, 2 SCC 1997, p. 417. 32 Basu D.D. 2004. Shorter Constitution of India, 13th ed. New Delhi: Wadhwa & Company Law Publisher, p. 142, 33 Under Article 17 '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 law. 34 Article 23 says Traffic in human beings and begaar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. 35 No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. 36 Subject to morality and health all persons are entitled to freedom of conscience and the right to freely to profess and propagate religion. 37 Article 38 directs the state to secure social, economic, and political justice. 38 Article 39 directs the State to follow some principles, that the citizens, men and women equally, have the right to an adequate means of livelihood; that there is equal pay for equal work for both men and women; that the health and strength of workers men and women and the tender age of children are not abused and that citizen are not forced by economic necessity to enter avocations unsuited to there age or strength. 39 The State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes 240

or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 40 Article; 42 says that the State shall make provision for securing just and human conditions of work and for maternity relief. 41 The State shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities .and, in particular, the State shall endeavor to promote cottage industries on an individual or co-operative basis in rural areas. 42 The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years. 43 The State shall promote with special care the educational and economic interests 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. 44 Chatterjee Sarajit Kumar (Ed.) 1996, The Scheduled Castes in India, Vol. 4, DeIhi; Gyan Publishing House, p. 389. 45 Seervai H.M. (Ed). 1993 (Rp.1999) Constitution of India. Vol. 2. Delhi: Universal Book Traders, p. 1234. 46 M.C. Mehta v. State of Tamilnadu, AIR. 1997 SC 699. 47 Bandhua Mukti Morcha V. Union of India AIR 1984 SC 802. 48 Vishal Jeet v. Union of India, AIR 1990 SC 1412, Gaurav Jain v. Union of India, AIR 1990, se 292, 1997, SC 3021. 49 J.N. Pandey. (Ed.) 1994. Constitutional Law of India, 27th ed., Allahabad: Central Law Agency, p. 269. 241

50 Sri Manchegowda v. Karnataka, AIR1984 SC, 1151, 1159. 51 No person shall be deprived from his life and liberty except under due procedure of law. 52 Any section of the citizens residing in the territory of India or any part there of having a distinct language, script or culture of its own shall have the right to conserve the same. 53 The state shall endeavour to protect and improve environment and to safeguard the forests and wild life of the country. 54 Govind v. State of M.P., AIR 1975 SC 1378. 55 Francis Coralie Mulin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746. 56 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. 57 Government of India 1952. First report of the Commissioner for Scheduled Castes and Scheduled Tribes, pp. 3-11. 58 In the state of Bihar, M.P. and Orissa there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Casts and Backward Classes or any other works. 59 Art. 330. Seats shall be reserved in the House of the People for the Scheduled Castes; the Schedu1ed Tribes except the Scheduled Tribes in the autonomous districts of Assam. 60 Art. 332. Seats shall be reserved for the Scheduled Castes and Scheduled Tribes, except that the Scheduled Tribes in the autonomous districts of Assam, in the Legislative Assembly of every State. Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam. 61 Art. 335. The claims of the members of a Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently 242

with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. It is provided that this Article shall not prevent in making of any provision in favour of the member of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standers of evaluation, for reservation in matters of promotion to any class or classes of services-post in connection with affair of the Union or of a State. 62 Art.338 Substituted in 2003 by 89th Amendment as there shall be a National Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes. 63 Art.338 A, substituted in 2003 by 89th Amendment, provides for the Constitution of a National Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes. 64 Art. 339. The President may at any time and shall, at the expiration of ten years from the commencement of this Constitution, appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States. 65 Art.340. The President may appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficu1ties and to improve their condition and as to the grants that should be made for the purpose by the Union or any state and the conditions subject to which such

243

grants should be made, and the order appointing such Commission shall define procedure to be followed by the Commission. 66 V.V. Giri v. Dora Dippala Suri, AIR 1959 SC 1318. 67 R.C. Poudyal v. Union of India, 1994, Supp. (1) SCC 324. 68 Comptroller v.s Jagannathan, AIR 1987 SC 537, para.21 & 22. 69 Ibid.

244 PART-VIII

CHAPTER-I

ESSENCE OF POLITICS IN BACKDROP/BACKGROUND OF RESERVATION

Reservation policy has had a profound impact on all political parties particularly since the implementation of the Mandal Commission Report. Political parties of various lines were indeed compelled to effect a complete overhaul of their ideology and approach leaders from the backward class in order to give the party a backward caste friendly appearance. At the same time several members of the party belonging to the backward class utilized their caste label effectively as a bargaining chip to gain leverage, particularly in securing party nomination during elections and positions in a party leadership. Caste conglomeration, polarization on caste lines, inter-caste strife, mushrooming of political outfits, and actions from parties were the immediate consequence of the decision. Many political parties tried to perform a fine balancing act to retain its hold on upper castes and also to make some gains over the backward castes. Certain political parties while supporting reservations on caste basis also demanded the inclusion of economic criterion or the creation of separate quota for the poor among the forward castes. This would, therefore, serve them well in appeasing both the forward and backward castes. However, none of the political parties dared to challenge the rationale of reservation policy as such.

Congress Party

The Congress party at the centre was seized of the issued of

245 reservation for BC after the Supreme Court's verdict against the Madras Government's communal order of 1947 as Unconstitutional. The agitation that was launched by the opposition leaders against the Supreme Court's verdict in Madras disturbed the regional congress leaders and engendered a fear of loosing their hold over the highly organized backward castes. They prevailed over the then Prime Minister Pandit Jawaharlal Nehru who then conceded to introduce· the first amendment to the Constitution providing reservation for the backward classes.1 Nehru admitted in Parliament "the House knows very well and there is no need to hush it up, that this particular matter in this particular shape arose because of certain happenings in Madras".

Thereafter; it was then realized that steps should be taken to improve the lot of the backward castes all over the country. In pursuance of this objective the First BC Commission was appointed under the Chairmanship of Kaka Kalelkar in January 1953. The report of this Commission which was submitted in 1955, recommended 70% reservation of seats for OBCs in educational institutions. However, the report was replete with dissensions by the majority of members and was even vehemently opposed by its chairman himself who expressed the fear that its implementation would stoke casteist tension. The centre hence decided against the implementation of the report but at the same time allowed the states to evolve their own policy towards the amelioration of BCs even as it expressed a preference for reservations on economic status rather than caste.2

It was only after the Janata Government's interregnum that the issue of reservation of seats for BCs in central services cropped up. The then Prime Minister Morarji Desai setup the Second BC Commission in 1979 under the chairmanship of Bindhyeswari Prasad Mandal a former

246 Chief Minister of Bihar. The Commission submitted its report only after the collapse of the Janata Government and after the re-election of Mrs. Indira Gandhi as the Prime Minister in 1980. It recommended 27% reservation for the BCs.

The Congress government claims to have discussed and debated the report, but steps were not initiated in implementing the report fearing a backlash. According to V.N. Gadgil, the then General Secretary, All India Congress Committee (I) and official spokesman of the party "it is not correct to say that the Congress (I) put the report in cold storage. Between 1980 and 1989 there were at least three full-fledged debates in Parliament on the report. We made attempts at a specially convened meeting of the Chief Ministers to arrive at some kind of national consensus on the findings of the Commission but unfortunately that could not be reached. We thought the report should not be touched without a national consensus as the recommendations of the Commission were socially sensitive and politically explosive. So we preferred to postpone a decision rather than rush through with it and unleash social unrest...... However the report did not see the light of the day right through the Congress rule up to Rajiv Gandhi. The report continued to gather dust until V. P. Singh announced his decision to implement it on August 7, 1990. The Congress, taken unawares, was forced to take a stand and to provide justification for its lackadaisical attitude towards the implementation of the report. At one stroke it changed its stand and began to vociferously advocate for reservations. The violence that the decision of implementation of the report unleashed and the severe accusations levelled against certain congress leaders for instigating violence, and the fear of losing its vote banks placed the party in an unenviable position. The Congress party accused the government of indulging in a political

247 gimmickry in the name of providing relief to BCs. It was in order to overcome the odds faced by the party due to inner party conflicts that such a decision was taken. Fear of the dismissed leader Devi Lal's boat club rally to be held on August 9 the same year was according to them the prime cause for the implementation of the report.3

Although the Congress party declared full support for the implementation of the report, it also made it clear of its desire for inclusion of economic criteria too alongside caste criteria.4 They floated a separate outfit known as the 'Equality Front' in order to win the support of the agitators and also to look and sound different.5 The congress working Committee in a last bid effort evolved a separate formula 'the Rajiv formula' comprising principles of economic criterion, reservation for entire lot of communities other than Hindus and waiver of fees for eligible candidates under the Mandal Report.6 However the formula was rejected by the States.7 In a rather surprising statement Rajiv Gandhi accepted that the party had committed mistakes with regard to reservation policy but absolved himself of any blame or responsibility for it.8 The congress also accused the prime minister of diluting the recommendations by excluding several sectors from the ambit of reservations as suggested in the Mandal Report. "Even on the question of reservations while the Prime Minister has been saying again and again that there will be no dilution of the provision of reservations, he has announced so many exemptions. First he said reservations would not be applicable to the defence sector. Then came the clarification that they would not be imposed on states and would not be applicable to educational institutions. Finally, the Prime Minister said reservations would not be applicable to promotions".

248 Janata Dal and the Mandal Commission Report

The implementation of the Mandal Commission Report although did feature in the Janata Dal manifesto, did not figure prominently in its election campaigns. It did neither feature in the Common Minimum Programme formulated along with its allies like the BJP and the Left parties in the governance of the country. The National Front (comprising the Janata Dal, BJP and Left parties) was voted to power not on the promise of implementation of the Mandal report but due to the allegations of corruption and other evils levelled against the Congress Government led by Rajiv Gandhi. Riding on the crest of the wave of personal popularity of V.P. Singh, the National Front succeeded in dislodging the Congress from power.

However its success was short lived with infighting within the party becoming a daily affair. The Janata Dal was a loose conglomeration of disgruntled politicians and defectors particularly from the Congress party. In the initial stages itself there prevailed severe discontent among the other two major leaders like Chandrasekhar and Devilal with regard to V.P. Singh's elevation to the post of Prime Minister.9 Devilal although appointed as Deputy Prime Minister became a severe headache to V.P. Singh who began meddling into affairs other than his portfolio. It began to be a great hindrance not only to V.P. Singh but it also evoked the ire of the allies i.e., the BJP and the left. Together they expelled Devilal from the National Front (NF) government. Devilal in a bid to avenge his expulsion decided to organize a huge rally in the boat club Maidan in New Delhi on August 9, 1990 with the intention of dislodging V.P. Singh. Devilal had a huge following among the peasants and farmers of whom the majority were members of his caste-Jats. The announcement of Devilal instilled a great sense of fear in the mind of V.P. Singh.10 He

249 suddenly felt an urgent need to outdo Devilal. The sense of urgency felt by V.P. Singh was so great that he resurrected the Mandal Commission Report from the cold storage and announced its implementation on August 7, 1990. This act was contrary to the understanding arrived at among the allies of the government which stipulated that decisions on issues particularly of controversial nature shall be arrived at on the basis of mutual discussions. This step was resorted to by V.P. Singh to silence some of his bitter critics in his party as well as his allies. He thought that it would enable him to create a powerful dent into the vote bank of BJP by slicing it into two units the forward and backward caste, the latter's support which he could also lay claim to.11 It would polarize the entire nation on casteist lines and would also give Devilal a run for his money for the Jats were not included in the list of backward castes12 in the Mandal Commission Report. This view was reached by V.P. Singh by taking into consideration Dr. Ram Manohar Lohia's ideas and the consequent influence wielded by the OBCs in Indian politics.13

V.P. Singh's decision unleashed a sudden spate of violence that engulfed the entire nation. Caste violence which was until then confined to a few states suddenly acquired a national character and that too on a common issue. Students took to the streets and began to indulge in arson and violence.14 Provocative statements from Janata Dal leaders like Ram Vilas Paswan and Sharad Yadav added fuel to the fire of caste war.15 Ram Vilas Paswan who on a previous occasion pleaded for the enlargement of reservation policy.16 To include the poor among the forward caste now did a volte-face by vehemently opposing the inclusion of any nature of economic scale for determining backwardness.17 In this he openly charted a style at variance with that of Babu Jagjivan Ram. The anti-reservation stir of students which was lacking in leadership now

250 found it in Mahendra Singh Tikait, the Jat leader of Bharathiya Kisan Union (BKU). The "Anti-Mandal Commission Forum" which compromised mainly of students forged an alliance with Tikait which culminated in the boat club rally on October 2, 1990.18 Tikaits main grievance was in the Jat community's exclusion 'from reservation policy. This alliance had the tacit support of Devilal and of even some Congress leaders. The movement got hijacked from the students by Tikait and it eventually resulted in hooliganism and vandalism and almost degenerated into a street affair and threw the anti-reservation stir in disarray and confusion.

Discordant voices began to be heard within the Janata Dal itself.19 Several of the leaders feared the loosing of their traditional vote banks which to a great degree was dependent on the support of upper castes. They also felt that V.P. Singh was more concerned with entrenching his own position in Indian politics. The Supreme Court order imposing a stay on the implementation Mandal Commission Report gave a reprieve to all parties and it also helped in lowering the pitch of agitations.

Meanwhile the BJP in an attempt to hold its flock together had launched a Rath Yatra demanding the construction of a Ram temple at Ayodhya.20 The arrest of L.K. Advani, the leader of the Yatra culminated in the BJP withdrawing its support to the, National Front and the eventual resignation of V.P. Singh.

The untimely demise of the Congress leader Rajiv Gandhi, the BJP's Rath Yatra, the acceptance of Mandal Commission Report were all factors responsible for the Mandal Commission Report loosing its impact on the masses and its potentiality to attract votes. A sympathy wave following Rajiv Gandhi's assassination engulfed the nation, which

251 diverted the attention of the masses from the Mandal issue. B.J.P's Rath Yatra and its consequent communalization of the electorate proved to be an effective combatant to casteism propagated by Janata Dal and its allies. Moreover the final verdict of the Supreme Court ordering the exclusion of creamy layer, which in other words was tantamount to acceptance of an economic criteria, gained greater legitimacy and acceptance for parties like Congress, BJP and the Left who had earlier demanded the inclusion of an economic criterion. As agitation became intense V.P. Singh himself seemed to have felt uncomfortable as his subsequent announcement to the effect were to prove to exclude certain sectors like defence and educational institutions from reservations, and also promising not to impose the report on the states.21 Bereft of reservation issue, the Janata Dal was left groping in the dark to find an alternative issue and ideology to approach the electorate. To add to its woes, Janata Dal began to splinter up rapidly which was to result in its votes getting scattered. The first split occurred with the departure of Chandarashekhar and Devilal along with 54 MPs, leading to a situation where the Delhi throne had to be sacrificed and elections ordered. The next round came in 1991 when Ajit Singh made his exit, for by supporting reservations he stood to loose and alienate his powerful Jat vote bank. A last ditched attempt was launched by V.P. Singh to salvage his image and resuscitate his party from being pushed into political oblivion. A Mandal Yatra on similar lines of the Rath Yatra of L.K. Advani was undertaken by V.P. Singh and his Mandal lieutenants like Sharad Yadav and Paswan. But it failed to take off as too many Yatras were also begun by other parties, particularly the Congress party.22 The Janata Dal even made attempts to commemorate December 1 as “Mandal Vijay Saptah" (Mandal Victory Week). In the 1991 elections, the Janata

252 Dal fared poorly loosing prominent states like UP, MP and Rajasthan, the states where they used the Mandal card to the hilt. Janata Dal as a party was reduced to regional outfits under the leadership of prominent leaders of the concerned states and failed to become a party of national statute since then.23

V.P. Singh can undoubtedly take the credit for having implemented the Mandal Commission Report, when other parties had made it only a passing reference to it both in their manifestoes and campaigns. At the same time he can also be accused of taking a hasty and unimaginative step towards its implementation by not consulting at least his allies, which he always took to confidence before making an announcement towards its implementation. This would have helped him in evolving a consensus and to incorporate divergent and practical points of view into the report before announcing its implementation. It was only after agitations against the report attained a feverish pitch and the Supreme Court's verdict that he favoured a 10% reservation for the weaker sections among the forward castes. But it was too late a move and also it lacked any novelty for several other parties had advocated such a measure. Suspicions were raised against such a move for many suspected it as another attempt by V.P. Singh to salvage his image and to make himself acceptable to his caste men-the Rajputs-whom he had alienated by the Mandal decision. Thus the Janata Dal by leaning too heavily on Mandal Commission Report, which by now became merely a populist measure24 reduced itself into a cipher forfeiting the fund of good will and the enormous mandate with which it came to power.

Bharatiya Janata Party (BJP) and Reservation Policy

The Bharatiya Janata Party's (BJP) support base comprised mainly

253 of the Hindu upper castes. They often harped on issues affecting Hindu religious sentiments, which gained them many dividends politically. As a prominent ally in the National Front, they never mentioned anything regarding the implementation of Mandal Commission Report emphatically in the manifestoes of the National Front.25 This was primarily due to the fact that support to reservation on caste basis would forfeit them their predominant upper caste vote banks and hence they were always for reservations on the basis of economic criteria.26 But the promise of building a Ram Temple at the disputed site in Ayodhya figured prominently in their election manifesto. A compromise on this issue was arrived at between the Janata Dal and BJP to have it resolved though mutual consultations and of course in a peaceful manner. The National Front Government had agreed upon a formula to take decisions on serious and controversial issues after holding consultations with its allies, the BJP and the Left. Until the announcement of implementation of the Mandal Report this formula was strictly adhered to.27 The above decision caused a great deal of consternation in the BJP camp. The BJP feared that it would cause a severe erosion of their vote banks by depriving them of OBC votes and inflicting a schism within the Hindu religion itself, rendering its efforts to forge a unity in the Hindu community futile. Severe condemnation was the initial reaction to the announcement.28 Later the party retracted its statements fearing the antagonizing of BCs.

The BJP was faced with a grave situation, which it had never confronted in the past decades since its birth. Support or opposition to the report would result in an irretrievable damage of forfeiting the support of the upper and lower castes, and would also cause great division on caste lines in the Hindu religion. It had to evolve an effective strategy to

254 salvage itself from such an eventuality. BJP then thought of enlivening the Ram Janmabhoomi issue which was lying almost dormant as a counter measure to Mandal report and thus to divert the attention of the people from Mandal controversy. The controversy over the construction of a Ram temple at Ayodhya was raging over the years and now it began to mobilize its feeder organizations like the RSS and VHP towards this goal.29 A Ratha Yatra was organized under the leadership of L.K. Advani from Somanath to Ayodhya demanding the construction of the temple from 25 September 1990.30 This enabled the BJP to successfully divert the attention of the masses from Mandal to Mandir. Communalism began to triumph. Communal riots overshadowed caste wars and it fragmented the ties between Muslims, OBCs and SC/STs which the leaders of Janata Dal like Ram Vilas Paswan. Sharad Yadav and Mulayam Singh Yadav were attempting to forge. As the Rath Yatra of L.K. Advani entered Bihar, the Chief Minster of the state issued orders of his arrest at Samastipur. Immediately the BJP withdraw its support to the NF Government which led to its imminent collapse.

In the post Mandal elections BJP registered brilliant success in four major states like UP, M.P., Rajasthan and Gujarat. It was also able to increase its numbers in the Parliament. The sympathy wave generated as a consequence of Rajiv Gandhi's assassination proved to be a great barrier in increasingly its tally in the election to Parliament. It was also able to open its account in the southern state of Karnataka where its presence was nominal.

The BJP still kept its efforts alive to garner several caste bastions into its fold even after it began to lose several states like Rajasthan and M.P. after the 1993 elections. The most important step was to placate the Jats of Rajasthan particularly after it lost out the state to Congress. It was

255 the redemption of an election promise made by the BJP to the Jat community in the course of its campaign to include them in the list of backward communities eligible for reservation benefits at the centre.31 This facilitated in weaning away the Jat votes from the Congress (I) and also to create a dent in the vote bank of the powerful Jat leader Devilal and his cronies.

Left Parties and Reservation Policy

The Left parties like Communist Party of India32 (CPI) and the Communist Part of India (Marxist) (CPM)33 were always in favour of reservation policy for the backward classes. While the CPI is for total implementation of the report without the economic criterion for ten years CPI(M) is for the criterion of economic criterion. Both these parties are of the firm opinion that reservation in jobs alone will not improve the conditions of the BCs. Land reforms and economic policy changes should also be effected to improve the lot of the BCs. However the CPM in a later version of its policy had demanded that reservations be made for women also. It has however demanded that the economic criteria for the identification of creamy layer as in the case of agriculturists be deleted. It has also expressed the apprehension that several castes and communities deserving of reservation may be deprived of the benefit owing to different nomenclature. In a statement the CPI said, "The party is of the view that all profession-based and artisan communities which find place in the common list has to be released by the government of India. And this should be' applicable, irrespective of their religion or faith". The CPI holds that nearly 40 per cent of the people are below the poverty line. Reservation should also be extended to the economically weaker sections of the socially advanced communities. A 10 percent reservation should be provided to such weaker sections. There is a consensus among political

256 parties on this issue. The CPI is also in favour of adopting the Karpoori Thakur formula in places where the system of reservation doesn't exist but at the same time in states which have their own version of reservation policy, it should be left untouched.

The Left parties, the other allies of the Front, were, however, unfazed. Though they did express unhappiness over the response of the government to the anti-quota stir, they stuck to their guns and refrained from demanding a deferment of the reservation decision. They instead favoured efforts for a dialogue on the issue. In the perception of the Left, the anti quota stir had taken an ugly turn largely because of the dubious role played by the Congress (I) and the BJP.

Political parties have adopted almost divergent attitudes when it came to deal with reservation issue in states. They took almost a different approach to suit the situation prevalent in various states. Hence it is necessary to analyse their views on this issue in the states.

Uttar Pradesh (UP)

Uttar Pradesh, with its huge BC and being the state where the disputed site of Ram Mandir is located, was seriously affected by both the Mandal and Mandir issue. It was also a state where caste consciousness is at its highest and since it sends the largest number of MPs to Parilament, politicians always put up a valiant fight in order to maintain their hold over the electorate in the state.

UP was following a reservation policy of 15% for BCs, which alongside reservations for SC/ST, ex-service men, the disabled and dependents of freedom fighters make up a total of nearly 49%.34 Barring a two-year disruption, after the High Court asked the government for a review of its policy, the state government under N.D. Tiwari appointed a

257 Committee for this purpose and upon whose recommendation was restored the 15% quota of OBCs in June 1989 by the Mulayam Singh government. This, however, did not evoke much protest and none of the politicians did make it an issue in their campaigns.

Mulayam Singh Yadav's decision to implement 27% reservation for OBCs disturbed the entire social fabric in the state. His decision would have resulted in an increase of more than fifty per cent in reservations. But he justified his decision by stating that several states in the south like Tamil Nadu and Karnataka were pursuing reservation policies which exceeded the Fifty per cent limit. It seems that Mulayam Singh was intent on making gains on two fronts. One by implementing the Mandal Commission Report he could create a rift among the UP peasantry by alienating the Jats35 and thus reducing the influence and domination of people like Mahendra Singh Tikait and Ajit Singh. The increased benefits that would accrue to Yadavas through his decision would make him the undisputed leader of that community. It would also blunt the BJP's increasing influence by alienating the backward communities from the party.36

The decision on Mandal report engulfed the entire state in violence. Government offices and educational institutions became targets of attack in several places. As was the case with the centre no political party in UP could be bold enough to condemn the reservation issue for fear of losing their vote banks to Mulayam Singh. The casteist war it unleashed spread out even to the rural areas. Certainly a polarization on the basis of caste was the result of this decision. The BJP and Congress (I) demanded the introduction of an economic criterion which was stoutly opposed by Mulayam Singh Yadav fearing the alienation of his castes.

258 The BJP smarting under the Mandal onslaught decided to utilize the Mandir issue to counter it.37 Muslims were also beneficiaries according to the report, and Mulayam Singh's appeasement of Muslims served the BJP well to incite communal passions.38 Lord Rama had a huge following among the Hindus in UP and the site of his birth place where now a mosque exists was a bone of contention between Hindus and Muslims particularly since independence. The Mandir issue overwhelmed the Mandal issue so much so that the casteist issue got gradually erased from the minds of the backwards. Riots which followed in the wake of Advani's Rath Yatra also resulted in Hindu-Muslim divide. As a sop to the backward castes, they projected men like Kalyan Singh, a member of the backward Lodh caste as the foremost leader of BJP in the state. With the aid of Ayodhya a significant number of OBCs were weaned away from Mulayam Singh.39

Communalism was effectively used in disrupting the coalition forged by Mulayam Singh Yadav amongst the backward classes. A vertical split among the BC and their veering round the BJP was the net impact of the Ayodhya campaign. Congress seemed to have paid a heavy price-first in forfeiting the upper caste votes for not condemning the Mandal report and also of the Muslims for not coming out prominently in denouncing the riots in the wake of L.K. Advani's Rath yatra. Mulayam Singh Yadav instead of evolving a consensus on both Mandal and Mandir issues went to the extremes by ordering lathi charges on the Karsevaks at Ayodhya and on Mandal issue by openly exhorting the backward caste to confront the opponents of Mandal report in a violent manner. The state machinery was utilized to commit excesses on both the Karsevaks and Mandal opponents. The severe loss of life and property that resulted due to the above measures cost Mulayam Singh dearly. BJP utilized these two

259 issues to the maximum and won away the upper castes voters and consolidated its position among the BCs to emerge triumphant in the 1991 polls.

The 1993 assembly elections saw the emergence of (Bahujan Samaj Party) BSP as a major factor in UP elections. The BSP which had only a marginal existence until then and was virtually not a factor to reckon with consolidated the Dalit voters who felt that they were exploited both by the OBCs and upper castes. Realizing the potential of Dalit-Muslim-Backward Class alliance Mulayam Singh Yadav began efforts towards this purpose in right earnest. Thus the alliance contributed significantly to the victory of BSP- SJP combine under the leadership of Kanshi Ram and Mulayam Singh Yadav.

The Mandal report ceased to be a prominent issue in the 1993 elections. The major reason probably would be that the Dalits were neither gainers nor losers in the Mandal Commission recommendations. According to Kanshi Ram: "Social Justice reservations, land reforms-all these ideas only give crutches to the handicapped. 'All parties which advocate social justice-Congress, Janata Dal, CPI, CPI(M) and others want the downtrodden people to remain on crutches forever. I want to make them stand up, walk, run and run faster. This way they will acquire so much speed that they will be able to compete with and defeat the privileged people. The crumbs given by reservations and land reforms are such that with them, one can neither live nor die. My concept of land reforms is to eliminate the landless farmer-of the marginal farmer and the exploited agricultural labourer. I am thinking of creating a new class called peasant proprietors. In a nut shell, the agitations are for making the handicapped and oppressed classes capable in their own right, so that they will demand and capture their share in the governance of their land. By

260 making them capable we are helping society and the country". Therefore, Kanshi Ram was firmly convinced that only social revolution and not affirmative action was going to solve the problem of backward classes. For him reservation policy would only make the OBCs further dependent on the establishment and will not empower or instill confidence or make them capable.

Uttarakhand agitation provides a classical example as to how any policy without taking into consideration the demographic pattern of the state is bound to fail. Uttarakhand region comprised of eight hill districts of U.P., i.e., Tehri, Garhwal, Paurli Garhwal. Nainital, Uttarkashi, Chamoli, Pittorgarh, Almora and Dehradun. The unique demographic feature of this area is that the population here constituted a majority of socially and educationally backward forward castes unlike in the plains where the backward castes / classes constituted the majority.40 A demand for the creation of separate state comprising these regions was considered the best solution to contact the backwardness of this area. Hence an agitation was carried out raising this demand. Although several political parties gave mention to this demand in their manifestoes, it did not find any expression in reality. On June 10, 1994 the SP & BSP government headed by Mulayam Singh Yadav approved the Rama Shankar Kaushik Committee recommendation for the formation of a separate state of Uttarakhand and the Chief Minister had announced that the proposal would be sent to Delhi for approval. The decision of U.P. government to implement the Mandal report in the hill districts gave rise to intense agitations in the area. The people feared that providing 27% reservations for castes who were a minority would deprive the majority people of the area of their rights, deny them admissions in educational institutions and jobs. A joint action forum called the Uttarakhand Samyukt Sangharsh

261 Samiti (USSS) was formed comprised of members from several political parties including people from several walks of life such as teachers and ex-service men. As the agitation gathered momentum violence also took its toll in lives and property. The intransigent attitude of Chief Minister only added fuel to the fire of agitations. He made several provocative speeches and the government whose responsibility of maintenance of law order was quite forgotten as the government itself called for a bandh. The Uttarakhand people defied the bandh call by keeping several shops and other establishments open while similar was the response of the plains people to the bandh call given by the Uttarkhandis.

Mulayam Singh by being irreconcilable to the demands made by the hill people was making shrewd attempts to make gains on two fronts. By supporting reservations he could win the support and image as champion of BCs and by conceding the demand for a separate Uttarakhand region he could win some support of the forward castes and also do away with an area where the upper caste domination would never converted itself into a vote bank. The Congress party, supporter of SP- BSP coalition government in U.P., was maintaining a stoic silence over the issue. Later as the agitations grew in intensity N.D. Tiwari demanded that congress withdraw its support to the government, which has become an epitome of lawlessness.41 BJP was also extending its support to the agitations and demanded the dismissal of the government. Congress government at the centre was reluctant to be actively involved fearing the consequences it would have in the forthcoming elections in Andhra Pradesh and Karnataka where the BCs are powerful forces to reckon with. However the dismissal of Mulayam Singh following the rift between Mayawati and him resulted in calm prevailing in the state and the decision getting shelved.

262 N.D. Tiwari's firm defiance of the Congress high command and his strident postures against Mulayam Singh Yadav won him great dividends. In the elections held to the newly constituted Uttaranchal legislative assembly the congress won 36 seats in the house of 70 seats. In other words the reservation policy of Mulayam Singh Yadav had accentuated the demand for the creation of a separate state of Uttarakhand.

Reservation issue was once again raked up in UP during the tenure of Rajnath Singh. The U.P. government constituted a social justice Committee in June 28, 2001 headed by Hukum Singh, Minister for Parliamentary affairs to look into the existing governmental schemes, programmes and facilities for the welfare of the SC/ST and the OBCs and suggest within a period of two months improvements to achieve the goal of social justice in U.P. There are 66 Scheduled Caste groups and 790 backward class groups in U.P. The data suggests that Chamars/Jatavs amongst the SC's and the Yadavs amongst the OBCs had a lion's share in jobs.

Bihar

Bihar in the last fifteen years has been following the Karpoori Thakur formula of reservations. It had a strong component of economic criterion, which excluded the affluent among backward communities from availing the benefits of reservations. A strong bias in favour of women of all castes and also a quota for economically weaker sections among forward caste was provided at 3%. An income tax ceiling was fixed to identify the affluent members of a community.

Laloo Prasad Yadav in imitation of V.P. Singh overhauled the entire reservation formula adopted in Bihar by doing away with two unique and widely accepted provisions. He annulled the provisions

263 providing reservations for the economically weaker sections among the forward castes and that which provides a quota for women regardless of caste and confined it to those belonging to SC/ST. The provision, which prevented the affluent among BC from taking advantage of the reservation scheme, was removed. Laloo justified his move to remove the economic criterion from his reservation scheme saying that the Supreme Court does not allow the inclusion of economic criterion in identifying backwardness.42 Thus he brought the Bihar reservation policy akin to Mandal reservation scheme adopted at the Centre. "Under the new scheme the ratio of reservations in government jobs has been raised by 2 per cent each for the two sections of the OBCs i.e., from 12 per cent to 14 per cent for the most backwards and from 8 per cent to 10 per cent for the backwards. The earlier provision of 3 percent reservation for the economically backward upper caste people has been struck down. The ordinance ensures 2 percent job reservation for women belonging to the SC/STs and OBCs only and has excluded the upper caste women from the benefits of reservation. Gender is thus not considered to be a common denominator of socio-educational backwardness as was the case under the tax ceiling which had been imposed under the Karpoori Thakur formula of reservation to prevent the economically prosperous section among the OBCs from taking advantage of reservation".

Sudden outbursts of violence were the immediate result of V.P. Singh's announcement of implementation of Mandal Commission Report. Bandh calls were given by both pro-reservationists and anti- reservationists. Life came to a standstill in several parts of Bihar Government establishments were set ablaze and railway stations were attacked, and hostels were closed following violence. Leaders were guarded in their reactions to the report. While the BJP and Left parties

264 welcomed the move they regarded the exclusive reliance on reservations based on caste as dangerous; Double speak was indulged in by several leaders who refused to toe the official line of the party. The reaction of Dr. Jagannath Mishra, former Chief Minister of Bihar was quite virulent. He accused the Chief Minister of inciting casteist tension and converting the state into anarchy. Although the Chief Minister admitted that problem of poverty and unemployment were the greatest scourge, hailed V.P. Singh's decision as historic, which aimed at keeping the social fabric intact. "Social changes invariably trigger reactions, but this is certainly no agitation much less a movement" Laloo remarked thus about the ongoing anti reservation agitation which he claimed had no impact on his state. Even reactions within the party was also urging a rethink on the part of the Chief Minister before going ahead with the implementation. Significantly, All India Congress Committee treasurer Sita Ram Kesari and Congress MLA Ramlakhan Singh Yadav (both belonging to the BCs), departing from the party's official stand, welcomed the implementation of the Mandal report, a gesture acclaimed by the Chief Minister.

It was the pro-reservation rally held on October 8 at Patna which plunged the entire state of Bihar into an unprecedented and unparalleled caste war. The rally which was attended by leaders such as Ram Vilas Paswan, Sharad Yadav and Prime Minister V.P. Singh made rabble rousing speeches exhorting the BC and minorities to confront the opponents of reservation policy. The Chief Minister Laloo Prasad went on to say: “Even if the heavens falls there can be no compromise on the Mandal decision". Immediately after the dispersal of the rally the Yadavas under the leadership of a Janata Dal MLA Pappu Yadav unleashed a spree of violence beginning with an indiscriminate firing on

265 a Bihar Village killing several persons. The Yadavas singled out the Brahmins regardless of their status in public life or government services looted their property and killed them. Fearing for their lives several Brahmins even crossed over to neighbouring Nepal and other places.43

The Laloo Prasad Yadav government had effected large scale transfer of district officers and SPs posting backward caste officers in place of upper caste officers. Jagannath Mishra demanded presidential intervention in Bihar in view of the complete break down of the Constitutional machinery in the state. He charged that the administration was in shambles as a result of the Chief Minister's pronounced bias towards his caste men in appointments, promotions and transfers of officers. Significantly the SCs has kept themselves aloof from the violence perpetrated by the Yadavas. Karpoori Thakur formula was the most acceptable of all formulas for the CPI(M), BJP and the Congress. The CPI was for undiluted implementation of the Mandal report.

The Congress began to make valiant attempts to infiltrate the powerful backward class vote bank deftly carved out by Laloo Prasad Yadav. They approached the other members constituting the BCs particularly the ones under the most BCs preaching to them that Laloo was intent only in furthering the interests of the Yadava community. In order to woo them they gave only 9.3% of the tickets of the Lok Sabha elections to Yadavas while 16.6% were given to the non-Yadavas. But all these efforts ended in futility. It might be because Laloo Yadav had dinned into the ears of his community members and others that all campaigns against Mandal Report were to perennially confine them to the state of backwardness. Moreover Jagannath Mishra's virulent campaign against the Mandal Report and the delay in finalising the list of contestants also contributed to the Congress' lacklustre performance at

266 the Lok Sabha polls. His caste brethren interpreted every statement for dilution of Mandal Commission report like including the economic criterion and reserving seats for the weaker sections among forward castes as a ploy to upset the reservation policy. Since this argument was so convincingly put forth to this supporters, it only added to Laloo's image and vote. The ambivalent stand of the congress party on the Mandal Commission report and the polarization of votes within it on caste lines eventually led the party to put up only a weak front against Laloo Yadav. He even took special care to cultivate the Kurmis and Koeris too and forged an alliance with the Jharkhand Mukti Morcha (JMM) and thus enhanced his ambit of influence much to the discomfiture of the Congress.

BJP too attempted to wean away some of the Yadavas from Laloo Prasad Yadavs sphere of influence. L.K. Advani thought of winning away the masses by his "Rath Yatra”, which was successful to a considerable extent in the neighbouring state of U.P. Laloo Prasad Yadav issued orders of arrest of L.K. Advani as his Rath reached Samastipur in the early hours of October 23, 1991. He justified his action saying: "By arresting this self-proclaimed reincarnate of Rama, I saved the country from a massacre. Advani wanted to use Rama's name for political ends. In fact he stepped up his communal activities after he saw the implementation of the Mandal Commission recommendations was getting massive support from the people and the BJP was loosing its effect". The unexpected development after Advani's arrest was a split in the state unit of the BJP. Thirteen out of the thirty nine of its MLA's deserted the party to form a new outfit called the Sampurna Kranti Dal (SKD) under the leadership of Singh Namdhari and Shamresh Singh, who were elected to the state assembly on the BJP ticket from Daltongunj

267 and Bokaro in the February 1990 elections. The SKD has also forged an alliance with the JD and JMM thus alienating a sizeable chunk of votes from the BJP. Another greater achievement was that he effectively controlled the occurrence of communal riot in his state in the wake of Advani's arrest unlike other neighbouring states which failed to arrest communal conflagrations. This inspired the confidence of Muslim community who began to veer behind him and this dealt a great blow to the congress of which the Muslims were traditional supporters. Laloo Yadav also wooed the dissatisfied Congress leaders particularly the members of this community increasing the internal dissension in the party.

Nitish Kumar raised the banner of revolt against Laloo's reservation scheme alleging that the reversal of Karpoori Thakur formula would result in the clubbing of OBC and MBC by which the MBC would be losers. This was said at a function organized by the Karpoori Thakur Rachna Chakra and the Jan Nayak Karpoori Thakur Vichar Kendra. It demanded that the government should not reverse the Karpoori Thakur formula.

Further, the delegate session of the MBC Coordination Committee held at Patna on February 15, 1993 demanded the increase of reservations quota for them to 16.5% from 15% in government jobs. However Laloo had the issue shrewdly tackled with the help of his colleague Sharad Yadav by increasing the quota of MBCs thus preventing any erosion of his vote banks.

The BJP however still licking its wounds of defeat in the Lok Sabha elections turned a blind eye to the maneuverings of the Janata Dal. They decided to depend more on the Ram Janmabhoomi issue rather than

268 on casteist issues. However, the Congress leader Jagannath Mishra criticised the decision of reversing the Karpoori formula as a violation of Supreme Court order which specifically excludes the ‘Creamy Layer' from reservation beneficiaries.44

The Janata Dal (Ajit Group) also criticised the move and also protested the move of the government for not constituting a Committee to review the Mandal list of beneficiaries and also for identifying the creamy layer among the backwards. Only the leaders of Samajwadi Janata party fully approved of the new reservation formula implemented by the Laloo Prasad Yadav government.45

The triumph of Laloo Prasad in the 1995 Bihar Vidhan Sabha elections proved the invincibility of his strategy. The Kurmi revolt led by Nitish Kumar and the subsequent formation of Samata Party had little impact on the Janata Dal. A badly faction ridden Congress and a divided BJP did not pose any challenge to him. But the Muslim votes did rally solidly behind, thus compensating for any loss he incurred due to the split of OBC votes. However, the Janata Dal gained the support of the Muslims only in areas where they are in a minority. Whereas in the areas where they are in a majority their votes were split between Congress and Janata Dal. Finally, though surprising it may seem, the OBC-minority alliance had not led to the empowerment of the Muslims. Both Yadav Chief Ministers (Mulayam Singh Yadav and Laloo Prasad Yadav) had projected themselves (and are perceived by the minorities) as defenders of Muslim interests. But the fact remains that during their tenure Muslim representation in government had reached an all time low. Some commentators anticipate that the next threat to the BC coalitions would come from this quarter.

269 Laloo Prasad Yadav has unlike Mulayam Singh Yadav-always identified himself as an indistinguishable member of his fellow caste members. He performed the role of a social reformer too similar to that of E.V. Ramaswami Naicker by solemnising marriages and thus breaking the monopoly of Brahmin priests and inducting Dalits into priesthood. They understand his language, his humour and his feelings. They love to see him milking the cow in the Khatals of the Chief Minister's residence. Laloo Prasad had made the people understand that the minority upper caste elite had ruled Bihar for so long and ruined the state. Power should now go to the majority backwards. This message had aroused the downtrodden in Bihar. He even adopted some populist measures for the benefit of the poor and downtrodden. On March 25, 1991 the decision to raise the wages of bidi workers from Rs. 9 for 5000 leaves to Rs. 20 was taken. He had also accepted in principle the right of tribals to minor forest produce. He proudly flaunts his humble origins. "Then as far as I am concerned, I have come here from the Chaprasi (Peon's) quarters". "Come to my village some time. My house was like pigsty, we lived like pigs. I recollect my mother making a gruel of dahi (curd), roti of madua (ragi) and maize, eaten with a paste of onion and chillies. Who could get vegetables? We used to herd cattle" "Look at my feet (shows his toes). See no nails. Stubbing our feet on stones and rocks, they have gone ..... we are working people. In the city we used to study at night and even pull rickshaws to earn our bread". The poor, who always remained at the periphery of politics, have come to the fore. They are the ones who have made Laloo Prasad Yadav practically all powerful. Crafty and shrewd he is well aware of the changes that are coming up, and therefore every political move of his is measured and calculated

270 Madhya Pradesh

The political track record in M.P. was one of total disregard to the electoral potential of the OBCs until the pre Mandal phase. Only very few members of the OBC had got elected from this region. The Mandal decision, which was expected to create a powerful dent in BJP's influence and gain dividends for JD, failed due to lack of caste solidarity and the infighting within the party. However, the BJP had, realising the potential of OBC votes, already began to take steps to influence the OBCs by promoting a few of its members by assigning a few posts within the party and also allotting a few seats in the elections to the assembly and. parliament. Most of these members emerged successful in the elections and were later to be instrumental in warding off threats to the BJP from OBCs aligned to other political outfits.46

The Congress(I) then decided to capitalise on the political consciousness among the OBCs which swept the entire nation in the wake of the Mandal Commission Report's implementation. They decided to embarrass the BJP government of Sunderlal Patwa by demanding the implementation of the Mahajan Commission Report. The Mahajan Commission was appointed during the tenure of Arjun Singh as Chief Minister in 1981. The Mahajan Commission had recommended among several other things a reservation of 35% of posts in the state for Backward c1asses. The Congress(I)'s appeal was a blow to the BJP which had opposed the Mahajan Commission Report. A hot contest between the Congress (I) and BJP ensued in nominating the largest number of OBC candidates in an attempt to woo the BC votes. However as the election results of 1993 revealed, the strength of BJP MLAs from the lower castes declined but at the same time increased from the upper castes. Even though the BJP took some steps in assimilating some members of the

271 lower castes, several of their leaders were refusing to concede their castes as backward.47

The election results of 1993 made it apparent to the BJP that its steps to cultivate the OBC is inadequate and that its untiring and relentless efforts towards shedding its upper caste image has not fructified. They decided to bring about a characteristic change in the rank and file of its organisation by conceding several key posts in the party structure to OBC and SC/ST. This incensed its major feeder organisation the Rashtriya Swayam Sevak Sangh (RSS) which felt that the BJP is dithering from its main ideological plank i.e., casteless society or Hindu unity. On several occasions they were at logger heads with the BJP on this issue. Statements issued by leaders became contrary to the RSS ideology and BJP strategy. However the BJP remained firm in their resolve in nominating more and more OBC, SC & ST members in order to ward off any threats from opposition parties in capitalising on the reservation issue and to shed its upper caste facade.

Karnataka

In 1986 the Ramakrishna Hedge provided for 68 per cent reservation which covered 92 percent of the population including the socially and politically powerful Lingayats and Vokkaligas. It was a modification of the Venkatswamy Commission report which excluded the two communities (Lingayats and Vokkaligas) from the BC list stating them to be very advanced. The Commission observed that there is an unhappy and disquieting situation in Karnataka where in the two premier caste-community-classes of Karnataka, the Lingayats and Vokkaligas each claiming that the other is not a socially and educationally BC and each keen to be included in the list of socially and educationally BCs".

272 There was a large public outcry against the report, that the then Chief Minister Hedge included them in the BC list and also constituted a third BCs Commission under Justice Chinnappa Reddy in 1988 which submitted its report in 1990. In his report Justice Reddy too reiterated the same conclusion with regard to Lingayat and Vokkaligas as was made by Venkatswamy Commission. Chinnappa Reddy Commission had recommended the scaling down of OBC reservations from the existing 50 per cent to 38 per cent. Fearing the wrath of the two powerful communities Chief Minister Veerendra Patil dodged the issue by appointing a cabinet sub Committee to study the recommendations. Before the Committee could submit its report Veerendra Patil was removed and Bangarappa assumed office who again reconstituted the Committee for a third time. Thus the report was frequently consigned to the cold storage.

The hooting up of dissidents within the Congress following Bangarappa's ouster and the efforts of Janata Dal to secure BC votes in the name of Mandal prompted the Moily government to implement a modified version of the Chinnappa Reddy Commission Report. In a series of orders the Veerappa Moily government implemented a diluted version of the Chinnappa Reddy Commission report ignoring certain cardinal recommendations of the Commission. On April 20, 1994 government order was passed to the effect that the percentage of reservations for SC's was enhanced from 15 per cent to 18 per cent and for ST's from 3 per cent to 5 per cent. This order amounted to the total reservation being increased to 73 per cent (23 per cent for SC and ST and 50 percent for OBCs). This move was resorted to by Moily in a bid to appease a few communities as only a month lay ahead for the Zilla Parishad and Taluk Committee elections and also only four months lay ahead for the assembly elections.

273 It may be recollected that the Chinnappa Reddy Commission had recommended the limit of reservation to 50 per cent in consonance with the Supreme Court verdict. In order to assuage the Vokkaligas and Lingayats whom the Commission had requested to be excluded from the BC list was accommodated by creating a fourth category of BCs (in addition to those recommended by the Commission). It included Vokkaligas. Lingayats. Marathas, Bunts, Christians and Kodavs in the "rural areas" and apportioning it an additional 12 per cent reservation. But obviously it did not go far enough. On July 23 the cabinet decided to issue a "modified reservation order" to "rectify the anomalies in the April 20 G.O.”. Under this the total reservation was enhanced to 80 per cent, with the OBC quota going up to 57 per cent.48 This gave Vokkaligas and Lingayats 8 and 11 percent reservations respectively in all government educational institutions and jobs. This was a premeditated step by Moily since this order was issued in July 23 which was indeed two days previous to July 25 rally intended to be organized by Vokkaligas on July 25.

The modified government order of July 23 didn't strike much in either appeasing or assuaging the Vokkaligas. Their rally which was held as per schedule on July 25, the one which Moily was trying to make lacklustre, demanded the resumption of the G.O. of October 1986 of Ramakrishna Hedge until a Permanent Backward Class Commission is appointed. Several members of his cabinet like forest minister H. Vishwanath voiced concern at the haste shown by Moily when the Permanent BC Committee (PBCC) headed by Kudur Narayana Rai was going into the entire gamut of reservations and examining representations from various communities. Moily firmly disputed the charge that the government had adopted this scheme after consultations with legal

274 pundits, sociologists and a wide cross section of the society and had not acted in haste. The chairman of the PBCC was also consulted according to Moily. Karnataka Congress Party President S. Bangarappa told Frontline that the modified policy was a political gimmick by Moily “with an eye on the vote banks". A number of political leaders. including state Janata Dal President H. D. Deve Gowda and Bharathiya Janata Party member and leader of the opposition in the assembly R. V. Deshpande, wanted the government to revert to the October 1986 order until the PBCC presented its recommendations. But Moily dismissed that order as "an Adhoc reservation policy lacking in many respects".

The Vokkaliga Sangha and others in writ petitions, questioned the validity of the April 20 and July 25 executive orders. They were in favour of implementing the 1986 order. Another writ petition from Shamji Raghunath Rohidekar and others challenged for the first time, besides the above orders, the legality of the 1986 G.O., assailing it on the ground that it was violative of a ruling in the Indira Sawhney case, and the Mandal case, both of which put the limit on reservation at 50 percent.

The 1986 G.O. and its implementation had never been challenged. Its implementation had been taken for granted. The Moily government undertook in the apex court on August 1 not to operate until further orders the G.Os. dated April 20 and July 25. But the Supreme Court agreeing with the pleas of the petitioners in assailing the legality of the 1986 G.O. on the grounds that it was not consistent with the 50 per cent ceiling, directed, initially in interim orders on August 30 and later making it absolute on September 9, that the state government not implement it.

Moily tried to enact a bill to include the Karnataka reservation scheme in Ninth Schedule of the Constitution under Article 31 B which

275 takes it away from judicial scrutiny. But a determined opposition forestalled any such move by Moily in both houses of legislature in Karnataka.

It is strange that a person of Veerappa Moily's stature and political experience should resort to such self-destructing tactics especially when a Supreme Court verdict was enforced on all states. Moily could neither win backward votes or could hold his flock together in the Congress. The decision of Supreme Court prevented him not only from increasing the reservation quota but also resulted in decreasing the prevalent 68 per cent reservation to 50 per cent. Dissidence within the party combined with failure on the reservation front inflicted a crushing defeat in the 1994 Assembly polls in Karnataka.

Tamil Nadu

On attainment of independence the then Madras Government passed a government order (revised) in November 1947. It stipulated that in a unit of 14 appointments, six (42.9%) were allocated to non-Brahmin Hindus, two (14.3%) each to Backward Hindus, Brahmins and SC's and one (7.1 per cent) each to Anglo Indians/Christians and Muslims (G.O. 3437 Public, 21st November 1947).

The Madras High Court and later the Supreme Court struck down the revised Government Order as ultra vires of the Constitution. The decision of High Court and Supreme Court caused great consternation in Madras. Leaders like E.V. Ramaswami Naicker firmly protested against the verdict and took out processions and endeavoured to call an all-party struggle for the reintroduction of the revised Government Order.49

The Central Government conceded the demands of the Madras government and the first amendment to the Constitution was enacted by

276 incorporating Article 15(4) which empowered the state to make any special provisions for the advancement of socially and educationally BCs of citizens and also for SC/ST not withstanding the provisions of Articles 15(1) and 29(2) on June 1951. The ·State Government on enacting this amendment reintroduced reservation in both educational and employment with 15 percent for SC and ST and 25 per cent for social and educationally BC, leaving the rest for open competition by the entire population. While the SC and ST were already listed, the BC were communities specified under the Madras Educational Rules and converts to Christianity from SC.

Although the fresh Government Order could assuage the feelings of the protestors, the Madras Provisional Backward, SC and Tribes Federation were far from satisfied.50 They demanded that reservations for BC, SC and ST be fixed at 65% and to relax the qualification marks for a pass at the intermediate examinations and admission to educational institutions. The government found these demands impractical and refuse to comply to them.

The anti-Mandal agitation didn’t break out in Tamil Nadu in the same dimension as in the Northern States. The DMK government of Karunanidhi during its second tenure from January 1989 to January 1991 enthusiastically supported the implementation of Mandal Commission recommendations of the National Front of which his party too was a constituent. The Tamil Nadu Assembly also passed a resolution to this effect supporting the implementation of the report. If Tamil Nadu was complacent during the 1990-91 Mandal agitations, the reason for it is not far to seek: with about 80% of the state's population already nestling under its protective umbrella, if the state's 1980's sudden and steep hike in reservation from 50% to 68% itself did not threaten it with any Bihar

277 or Gujarat type caste war, the centre's introduction of a mere 27% reservation could not have done it either".

The AIADMK Government under J. Jayalalitha passed a resolution unanimously with other members of the legislative demanding 50% reservation. It said that reservation should not be limited to central services alone but should also extend to educational institutions as well.

It was the Madras High Court which again stoked the dying embers of reservation issue when it ordered that reservation of 69% in educational institutions should only be implemented in 1993-94 and a ceiling of only 50% should be effected from 1994-95. The High Court pointedly said reservation was "a very sensitive, highly explosive and extremely delicate issue". Dissatisfied with the High court verdict of effecting 50% from 1994-95 onwards only, an organisation Voice (consumer care council) challenged the order at the Supreme Court. The Supreme Court ordered that the ceiling of 50% reservations in educational institution should be operational in 1993-94 instead of 1994- 95. However when the government pressed ahead with 69 per cent reservation in 1993-94, itself in accordance with Madras High Court's verdict, the Supreme Court construed it a contempt of Court.

The Tamil Nadu Assembly after the issue of the above verdict by the Supreme Court passed a resolution on November 9, 1993 with the support of all parties which included AIADMK, the DMK, the Congress (I), the CPI, CPI(M) and MGRADMK pressing the centre to amend the Constitution for "the continuance of 69 percent in govt. service and educational institutions for all time to come". Jayalalitha also announced that the state would observe a bandh on November 16, 1993 to express the people's feelings on the issue. All the political parties expressed their

278 support both for the resolution and the bandh. However, Karunanidhi, Vazhappadi Ramamurthy of the President of the TNCC (I), CPI (M) and Leader of the opposition faulted Jayalalitha for not convening an all party meeting to discuss the issue before the assembly elections.

The Chief Minister Jayalalitha was accused of betrayal of the resolution moved by the Assembly for the protection of 69% reservation, when the govt. filed a reply at the Supreme Court on November 22, 1993 an "affidavit of compliance" to adhere to 50% ceiling fixed by the Court.51 This incensed every political party on the ground that they were not consulted on the matter before the affidavit of compliance was submitted to the Supreme Court. They refused to accompany her to the Prime Minister Narasimha Rao in order to persuade him to amend the Constitution to retain the 69% reservation in Tamil Nadu. The opposition parties in fact doubted the sincerity of the Chief Minister in this matter. Karunanidhi even alleged that Jayalalitha was engaged in a 'double game' on this issue.

Jayalalitha succeeded in getting the presidential assent to the Tamil Nadu BCs, SC and ST (reservation of seats in educational institutions and of appointments or posts in the services under the state Bill) 1993 on July 19, 1994. The consent was granted after a delegation led by the Chief Minister Jayalalitha met the Prime Minister and requested him that the bill be included in the Ninth schedule of the Constitution after in became an act under to take it away from judicial scrutiny.52 It also demanded that the centre amend the Constitution to enable the state governments to vary the percentage of reservations depending on their population and local factors.

Jayalalitha "success" in obtaining Presidential assent for the state's

279 controversial reservation bill and the subsequent passage of the Constitution amendment bill by parliament providing for inclusion of the state Act in the Ninth schedule of the Constitution soon won for her the acclaim of not only her own party men but of the leaders of a few other parties of little or no consequence in the state. She was hailed as “Samooha Needhi Katha Veeraganai" (the brave lady who protected social justice) at a felicitation function in Madras.

Kerala

Kerala has been following a reservation policy which provided for 49.5% reservations for the SC/ST's & OBCs. This policy has been continuing for several decades since independence except for a brief protest being raised here and there. In Kerala the BCs and forward Castes are very well organised and had been a force to reckon with for decades.

Even though the reservation policy did hamper the entry of forward castes into the state service sector, they were fairly satisfied with the open merit quota in the central service, which enabled several of their members to secure recruitment. The decision to implement the Mandal Commission dealt a lethal blow to the forward castes. The two coalitions, the UDF and the then ruling LDF, had several supporters of both the forward and BC communities whom both the coalitions were wary to antagonize. The greatest rift occurred in the UDF whose major partner the Muslim League was a great votary of the Mandal Commission report. They refused to entertain any suggestion of inclusion of economic criterion, which to them would be at the disadvantage of BCs. For them it was not the jobs or income that would accrue by way of reservations, but the participation in administration that that was deemed as important.53

Kunjalikutty, state secretary of the Muslim League openly clashed

280 with the Congress (I) leader K. Karunakaran on the issue of economic criterion in the reservation scheme. He alleged that there was practically no difference with regard to reservations between the Congress (I) and CPM for both favoured economic criteria. However, since both these coalitions had substantial number of members from BCs, who are also in favour of reservations on the basis of caste they should be prepared to polarise into a single unit, cutting across political affiliations. The moment these BCs join together, and form a united front, the Muslim League would not be found wanting in giving leadership to it. He exhorted the majority of the BCs and minority communities to organise against the unholy alliance of forward caste hegemonists and communal divisive forces.

The declaration of the SNDP President with regard to the Ram Janma Bhoomi issue gave great inspiration to the League leaders. The SNDP President K.K. Vishwanathan severely condemned the BJP's Ram Janma Bhoomi issue and even branded Lord Rama as a God of the forward castes. The League even reminded their Hindu brethren that the main aim of the BJP was to foster communal violence. It pleaded to the BCs that they should unite forgetting their religious affinities. In these circumstances the League would be a warrior at the forefront in the fight for the issue, but no political games could be resorted.

When the initial euphoria of V.P. Singh's Mandal Commission Report subsided, the Muslim League began to campaign against him personally and warned the masses not to fall into the trap laid by him. The League even branded V.P. Singh as a former member of the R.S.S.

The inner party conflicts over the Mandal issue and the Ram Janmabhoomi issue had its members caught in a fix and they could not

281 evolve a common approach to the Mandal issue. The Muslim League's divergent view also confused its predominant constituencies in North Kerala. The LDF scored a sweeping victory at the District council elections making great inroads in to the Congress strong hold of' coastal Kerala and central Kerala to an extent and also into the League strong holds like Malappuram. Moreover the UDF's almost pro-reservation posture minus economic criterion lost them the votes of the forward castes as well.

Enthused by the success at the District Council elections, the LDF government in Kerala decided to go in for elections to the assembly in 1991 forgoing almost a year of its government mandate simultaneously with that of the Lok Sabha polls. The UDF was wilting under pressures of inner contradictions.54 But the factors that contributed to the success of the LDF victory at the District Council polls were not everlasting. The Sanwarana Samudaya Munnani, (SSM) a coalition of pro-reservationist forces had not committed itself to any of the coalition parties. But the LDF was confident that their votes would eventually fall into their kitty.

The assassination of Rajiv Gandhi had turned the attention or electorate from the reservation controversy. Many of the Latin Christians, who were beneficiaries of reservation policy, were completely sidelined by the sympathy factor that swept the nation in the wake of Rajiv's assassination. The SSM were provoked at the derogatory comments made by Marxist veteran E.M.S., Namboodiripad about certain prominent leaders of the Ezhava Community who were the flag bearers of Ezhava Social reform movement.

The LDF did a damage controlling exercise by stopping all attacks of Ezhava casteist leaders and won the unconditional support of the SSM.

282 It is doubtful whether this did succeed in pacifying the wounded sentiments of the Ezhava community as the LDF's performance at the polls showed. The refusal of the LDF to accommodate the Muslim League led to a very uncomfortable position. The support the SSM had pledged to LDF made it difficult for League to continue in the SSM. They made a tactical escape from this trap by quitting the SSM.

It was in central Kerala that the caste polarisation was more evident. The silent anti-Mandal sentiment sweeping across the districts like Pathanamthitta, Idukki, Kottayam, and Ernakulam worked effectively in creating a loose solidarity between Nairs and Christians. Hence as far as Kerala was concerned Mandal remained only a subject of political debate only. The Muslim League became wiser after its experience in the hands of LDF when the latter after utilising its clout at the District Council elections refused to accommodate them in the LDF coalition. Their return to the UDF not only strengthened it but reduced the SSM's strength on whom the LDF was leaning heavily upon.

The too close identification of the LDF with SSM provoked alienation of some of the upper caste sympathisers of the LDF. Some of the Christian Bishops came out in public forums with pleas to vote in favour of UDF in the second leg of the campaign. With the exit of the IUML (Indian Union Muslim League) from the SSM and the neutralization of the Latin Catholics after the assassination of Rajiv Gandhi, the SSM had virtually been reduced to its Ezhava base, most of whom even otherwise had been traditional supporters of the left. Thus the net gain of the LDF from its escapade from SSM is a doubtful issue.

West Bengal

The West Bengal Chief Minister Jyothi Basu had informed the CPI

283 (M) central leadership that he will not implement the recommendations of the Mandal Commission till the anomalies are removed. Basu reportedly told senior colleagues "that the Commission's recommendations on the 27% job reservation for the BC was an absurd proposition as far as West Bengal was concerned". He said SC/ST and other minority interests are well protected in the state and any further concessions would naturally hamper others. Although this was in consonance with the CPI (M)'s view of reservations, it was diametrically, opposite to his personal views, which he had expressed in favour of reservation previously. According to the CPI(M) theoreticians, caste-based-reservation policy tends to perpetuate narrow caste consciousness and therefore is a hindrance to the development of class consciousness. Such a policy is basically intended to serve the purpose of a bourgeoisie democracy. By generating inner conflicts among the toilers and splitting the unity of the oppressed class, the policy of reservation proves to be a stumbling block to the revolutionary class formation

According to the 1981 census, West Bengal has a total population of 54.6 million of which the SC population is 12 million and the ST population 3 million. Thus the SC constitutes 22 per cent and the ST component is about 6 per cent of the state's population.

West Bengal has reserved 15 per cent and 5 per cent seats in government services for SC and ST respectively. However these provisions were not adhered in most government establishments and in 1976 it was found that the SC/ST were not adequately represented. But the West Bengal government in their deposition to the Mandal Commission Report had opposed the idea of reservation of seats of BCs and had indeed suggested poverty and living standards to be made the measuring scale in determining backwardness.

284 There were attempts in West Bengal towards organizing the BCs and demanding reservations in government service. The political history of West Bengal is full of clashes between the Namasudras and other communities. The BCs in West Bengal mainly constituted the largest segment of the rural population engaged in agricultural activities. The social dimension of the process of community transformation and various land reform measures however had their impact like other states, in West Bengal too in giving a new shape to a major section of the backward population. The impact was not homogeneous. During the fifties they improved their social and economic conditions, but the process of evolution of a separate social entity did not succeed. In later years, however, in they emerged as a comparatively new force in rural West Bengal which nourished an antagonistic attitude towards the social political base of the CPM.

It was in the late sixties that the leadership of Biplabi Bangla Congress had organized the convention of the Antayaja (low born) peasants and Namasudras in Calcutta. The powerful politician of 1967, the man who was instrumental in installing the first United Front Government in the state. Sushil Dhara was also the moving spirit behind this conference. In fact even at that time the smaller political parties in West Bengal had been banking on the support of the rural middle classes for their existence. They had demanded a certain percentage of reservations in the jobs. Primarily the political move was to consolidate the base of the party among the lower castes. The party could not hold the ground for long, since after 1969 the CPI(M) mounted a systematic attack on its social base and the party gave in.

The rise of the left and radical politics has led to the forgoing of links with the rural masses for purposes of political mobilization. Even

285 after the pre-independence days, the left parties have been active in mobilizing the peasantry against the major issue of oppressive taxes. Sharing of common political values by the members of different castes has paved the ground for a "class" orientation among the rural masses. Hence battles are waged between classes and not castes, and the slogans are political and not parochial.

Vehement protests were raised by the allies of the state government against the government's decision not to implement the Mandal Report. They alleged that the upper castes were firmly entrenched both in the government and party cadres and hence the government was afraid of antagonising them. These upper castes have thwarted all efforts to provide participation to the backwards in the administration. An organisation called Mandal Commission Action Committee headed by a Senior Left Front Minister and Chairman of the State Forward Bloc, Bhakti Bhusan Mandal had emphatically claimed that at least 50 percent of the total population of West Bengal belonged to the OBC. He then listed nearly 173 castes as belonging to OBC group. The castes belonging to OBCs are mainly engaged in agricultural production and/or as artisans. Their representation in education, employment and other walks of life were also negligible.

It is quite obvious that the CPI(M) leadership in a very tactful manner had been trying to maintain the status quo of the power structure, the power structure which had crystallised into a social structure. Any shift in its stand would jeopardize its social base. The decision making process in the CPI (M) is now controlled by rural middle class and their urban allies. By agreeing to accept the existence of OBC in West Bengal the CPI (M) would be forced allow this section to participate in decision-making at sharing power or shaping the destiny of the country. Interestingly, while

286 the CPI (M) in other states, particularly the Hindi States had been forcefully demanding implementation of the Mandal Commission Report and reservation, it is not ready to concede the same in West Bengal.55

Political parties are very hesitant to oppose reservation policy as such. There is a severe polarisation between the forward and backward caste members of the political parties. No party can exclusively depend on an issue permanently to derive political mileage. This was proved when the Justice Party and later DMK began to take up issues other than social justice and reservations and forged alliances with parties whom they had deemed earlier as their inveterate foes. Demography of an area should also be considered before reservations are implemented. Political parties have seized the opportunity in the Mandal Commission statement by V.P. Singh when he gave freedom to the states to decide upon the implementation of the Mandal formula in their respective states. When states like U.P. and Bihar decided to implement the report, Orissa, Gujarat and West Bengal refused to implement it in their states. West Bengal even made the astounding statement that BCs were non-existent in that state and hence the report could not be implemented there. In stark contrast, the LDF government headed by CPM in Kerala, which is far ahead in terms of social advancement, has decided to implement the report in the state. Certain States like Tamil Nadu and Karnataka had even violated the Supreme Court verdict of 50% ceiling in reservations. Tamil Nadu had also endeavoured to effect a Constitutional amendment on this matter. Political parties have therefore, tailored the reservation policy to suit their chances of victory at the polls. They have done a fine balancing act to humour both the BC and forward classes by not opposing reservation policy as such, and at the same time introducing an economic criterion. They have not endeavoured even to debate the reports of

287 various Commissions and also the reasons as to why the implementation of various other schemes of reservations have failed to improve the lot of the intended beneficiaries. They have also fought shy to the demand for the conduct of a caste based census to assess the progress made by various caste groups in the social, educational and economic spheres. Reservations after the initial euphoria in the wake of Mandal Commission Report has been relegated to political oblivion as it has not won the expected dividends for any the political party particularly the Janata Dal, the foremost and ardent champion of the Mandal Report.

288 PART – VIII

CHAPTER – II

REFLECTION OF DISCRIMINATION IN PROCESS OF EXTENDING RESERVATION TO BACKWARD CLASSES ESPECIALLY MUSLIM BACKWARD CLASSES

India's vast array of policies of affirmative action and reservations do not cover religious minorities per se. Political transformations around the world have led, however, to various innovations, including the establishment of quotas for minority groups. Virtually everywhere in the world there is now a demand for greater equality and equality of treatment among ethnic groups.56 Educationally and economically disadvantaged groups and minorities the world over are demanding governmental intervention on their behalf. Most governments have responded positively to these demands either out of concern for social justice-as the Indian government has done with regard to the SCs, STs, and OBCs or to mitigate political conflict between competing interests.57 Whatever the causes, what is striking is the growing worldwide concern for the removal of inter-group inequalities.

There is a widespread recognition that unless nation-states become more sensitive to the concerns of and the need for minority voices in decision making, strategies of inclusion cannot have any chance of success. The critical issue in this regard is the ways and methods through which minorities can be included in public institutions. Until recently, however, policy makers in India did not view these inequalities in regard

289 to the under-participation of minorities in governance as a problem. Under-representation was seen to be a consequence of the historical legacy of Partition or due to the differences in job preferences and educational backwardness. But in recent years, coalition governments at the Centre have responded positively by expanding the range of targeted policies for a variety of disadvantaged groups. Caste and women's groups have received guaranteed seats in local government (though women have experienced difficulties at the legislative level, primarily due to questions of how to resolve caste reservations demanded by caste· based parties and organizations) and a range of special measures for their advancement.58 Minority groups, on the other hand, have been refused reservations on the grounds that it would be discriminatory and violate the fundamental right to equality.59 The reluctance stemmed from a larger concern that this would hamper national unity, undermine secularism, and engender communal discord.

India's caste, class, and community spectrum is complex and multifaceted but official group-based policies frequently fail to capture this complexity. The Indian debate has covered a wide range of issues from who should be targeted, why they should be targeted and how they should be targeted, to merit, and the economic criteria for reservations. However, this debate has for the most part skirted the question of application of affirmative action to minorities in areas of employment or education. One important issue in this debate is with regard to the import of caste in the conception of disadvantage in the formulation of affirmative action policies. An alternative view implicit in the discussion in this chapter would make caste only one consideration and would move towards a principle which is sensitive to different layers of deprivation that stand in the way of equal opportunity. Examining the pros and cons

290 of affirmative action for minorities in public employment is instructive in this regard because it draws attention to the deprivation of other groups and hence the need to be sensitive to multiple dimensions of disadvantage.60

This brings to the forefront the question of which identities count in affirmative action for the disadvantaged, and whether public policies take into account the complexities in the relationship of caste and minority on the one hand, and minority and class on the other, or the overlap between cultural and socio-economic inequalities. There is also the issue of the ways in which state-driven conceptions of backwardness tend to equivocate on the complex relationship between these categories. Minorities suffer in varying degrees from discrimination and deprivation. Muslims are among the most deprived groups and that there is not much difference between SCs, STs and Muslims in terms of levels of deprivation and disadvantage. But India's affirmative action policies are yet to take this social reality into account. Many of the policy interventions have frequently revealed an inability to comprehend the various facets of disadvantage as they occur within and between groups. Today social and political exclusion can no longer be understood, if it ever could be, by narrowly assessing the situation of upper and lower castes without taking into account other social inequalities and oppressions.

The two key issues with regard to inclusion arc backwardness (which in principle covers the Muslim community but is not specific to it) and under-representation (which is more specific to the Muslim community). This chapter focuses on the specific issues of under- representation and of affirmative action measures needed to redress this imbalance. In this context, it more specifically focuses on the merits and

291 demerits of minority versus backward-caste reservations in the context of differences amongst Muslim groups on the issue and the wider debate on minority versus caste quotas and the demand for sub-quotas for Muslim OBCs.

There are two broad issues here. One, how-does a society ensure fairness where unfairness reflects not only long-standing, systematic discrimination but also deprivation arising from different dimensions of disadvantage? The second issue is whether Muslim deserve affirmative action, and, if so, on what basis. While there is no consensus in the political system on the issue, there is also no unanimity among Muslims either on caste versus minority status as the basis for making claims of affirmative action on the state. Sharp disagreements have come to light among Muslims after the Mandal Commission recommendations to include certain backward Muslim groups in the OBC list and after several state governments decided to extend reservations in principle on this basis to Muslims by classifying sections of them in the backward- class category.61 Different organizations representing divergent positions have raised competing demands on reservation, as Muslims are clearly at odds over this issue.

Representation in Public Employment

After India's Independence in 1947, most Muslims in India decided to stay on in the country despite large-scale killing, dislocation, and violence. However, social stagnation and educational backwardness cumulatively resulted in growing socio-economic deprivation and marginalization of Muslims.

The absence of Muslims in the corridors of power and decision making is just as marked today as when Nehru had drawn attention to it

292 sixty-five years ago. From time to time there have been government instructions sensitizing selection boards about the need to select minority candidates for public employment and public sector jobs. In 1975, Indira Gandhi had directed all the Central ministries and departments and the state governments to nominate, a member of the minority community in the selection Committee/Board for recruitment to group 'C' and group 'D' posts within the overall sanctioned strength of the Committee/Board, In August 1990 all the ministries and departments were asked to conform to the above-mentioned original notification on selection boards as there was very little compliance since 1975. This position was reiterated in January 2007 by the Department of Personnel and Training to all Central and state departments to include one member from the minorities in recruitment Boards/Selection Committees.62 But these instructions are invariably ignored by recruitment boards for public employment.

With low levels of education and no affirmative action in the sphere of public employment, Muslims are mostly in self-employment. Although they are a distant third compared to the upper- and backward- caste Hindus, they are over-represented in self-employment, given that they are a smaller proportion of the population. The Sachar Committee Report (SCR) showed that only 8 per cent of urban Muslims are part of the salaried classes compared to the national average of 21 per cent for urban India. In 2005-6 about 27 million persons were employed in the organized sector; of these 18.6 million were employed by government departments and public sector undertakings (PSUs) and the remaining were in the organized private sector. The SCR received data pertaining to 88 lakh employees of which only 4.4 lakh were Muslims.63 Though Muslims have a share of 13.4 per cent in the country's population. their share in government jobs is a mere 4.9 per cent. Of the fourteen lakh PSU

293 workers, Muslims constituted 3.3 per cent of Central PSUs and 10.8 per cent of state-level PSUs. They are very poorly represented in the armed forces, where their proportion is believed to be just 2 per cent, and in paramilitary agencies it is nominal (between 1 and 5 per cent).64 The Indian Railways is one of the largest employers in the country, employing about fourteen lakh people; of these only 4.5 per cent are Muslims. Even among these, 98.7 per cent occupy lower-level positions and officers are only 1.3 per cent. In the Group A category in the railways, Hindus (General) and Hindus (OBCs) hold 72 per cent of the jobs, followed by SCs/STs at 18 per cent, and Muslims a mere 2.5 per cent.

The SCR reported severe under-representation in government jobs even in states in which Muslims constitute large minorities. In States like Uttar Pradesh, Bihar, and West Bengal with large Muslim populations, their proportion in state employment is less than a third of their population share. In West Bengal, despite the Left Front's three decades in power, their share in government employment is an abysmal 4.2 per cent, a fraction of their population share (25.2 per cent).65 In Bihar and Uttar Pradesh too, the number of Muslims employed in the government is less than a third of their share of the total population. Uttar Pradesh and Bihar have 18.5 per cent and 16.5 per cent Muslims, but only 5.1 per cent and 7.6 per cent Muslims in government jobs. Among all states which shared data with the SCR, the highest percentage of Muslims employed in the government is in Assam, at 11.2 per cent. This is still way below their 30.9 per cent population share. Andhra Pradesh is the only state which shows representation that is fairly close, but there too it is less than the population share in the state. Three other states that show relatively better Muslim representation in state government jobs are

294 Karnataka (Muslim population share 12.2 per cent, share in jobs 8.5 per cent), Gujarat (Muslim population share 9.1 per cent, share in jobs 5.4 per cent), and Tamil Nadu (Muslim population share 5.6 per cent, share in jobs 3.2 per cent). 'The highest percentage of Muslims in higher positions in state public sector undertakings is in Kerala with 9.5 per cent, but this is also less than half the share of Muslims in the population of the state.66 The recent data on recruitment by the State Public Service Commissions from 2001 to 2006 from Uttar Pradesh, Assam, Gujarat, Delhi, Rajasthan, Orissa, and Himachal Pradesh show that the share of Muslims in all recruitments is about 2.1 per cent.67

The situation is conceivably worse in the private sector. The proportion of Muslim directors in the private corporate sector is very low. Apart from a few exceptions, the corporate sector appears to have an unofficial policy of keeping the minorities out, especially Muslims.68 One survey showed that just over 1 per cent of corporate executives are Muslim.69 One effect of this exclusion in the economic sphere has been the slowing down of the emergence of a Muslim middle class.

This brief description shows that Muslims have on the whole not done well since Independence in public institutions and government jobs. Apart from having a long-term regular income and retirement benefits and providing economic security, higher positions in government jobs offer the employee privileged positions in society through ascribed and sometimes assumed status; they are also accorded privileges as members of governmental institutions. Besides regular employment in the government sector can also influence the distribution of goods and access to public services in several ways which affect different sections of the population.70 Job reservation has succeeded in raising the representation of the SCs/STs by at least 5 percentage points.71 Without

295 reservation, the representation of these two groups in regular salaried and wage employment might have been even lower than that of Muslims, and the estimated gain of five points therefore underestimates the true gain from job reservation policies.72 The importance of reservations in enhancing the political representation of SCs is obvious from the near absence of SCs in the Rajya Sabha, which has no reservations. This is perhaps the most telling instance of under-representation in the absence of reservations for a disadvantaged group.

The key question in this regard is how much of Muslim under representation is attributable to educational backwardness and how much is due to discrimination and bias in public employment on the part of those who control the avenues of employment in government and the public and private sectors. Historical factors have played a major role. Partition was accompanied by mass migration of the Muslim elite to Pakistan, including government servants, businessmen and the affluent sections, and educated youth. This inhibited the growth of a Muslim middle class for the first few decades after Independence.73 As a consequence, the Muslim middle class is still weak and relatively small and hesitant to act as an agent of change to provide leadership to the community in its search for equity and justice.

A second set of factors has to do with the nature of Muslim communities. This has been discussed in detail by numerous sociologists.74 A large proportion of Muslims are descendants of converts from various ‘low’ castes, whose social and economic conditions remained largely unchanged even after conversion. 'The third factor relates to the influence of conservative sections of the ulema and the paucity of civil society groups and initiatives working for educational and economic development and empowerment.75 Most organizations

296 associated with Muslims in north India and influential sections of the Muslim elite have focused on identity issues rather than education and empowerment, as it shores up their claims to authority and enables them to deliver votes in return for being treated by the state and political parties as the 'representatives' of the community. Many others feared that they would be branded communal and hence did not want to work exclusively among or for Muslims. Until quite recently, Muslim legislators avoided raising issues that were considered to be exclusively Muslim. This is not surprising. Negative stereotypes abound in India not the least the terrorist attacks on New York's twin towers and in different parts of the country in the past few years.

The educational backwardness of Muslims is an important reason for their under-representation in public employment and decision-making structures. More than six decades after Independence they are among the most educationally backward groups in both school and higher education. The gap between Muslims and the advantaged sections has actually widened, particularly since the 1980s. In fact, the traditionally underprivileged SCs/STs are overtaking them in several areas. The last point is of special importance, as at the time of Independence the socio- economic position of SCs/STs was recognized to be inferior to that of Muslims. One important reason for the low participation of Muslims in higher education is their significantly low achievement level in higher secondary education.

There is a positive link between education and employment. Human resource capital, especially education, not only affects employment opportunities but also determines occupational patterns. Without economic returns to education provided in the form of a higher probability of getting employment or earning higher income, investment

297 in education may not occur. In this vicious circle, both education and employment suffer. Education also creates social linkages and networks necessary for gaining employment. But the widespread perception that Muslims will not get government jobs acts as a deterrent and also leads them to attach less importance to education because they assume that they will not be able to get government jobs in comparison to other communities and hence there is no incentive to complete higher education, in fact it encourages them to drop out and take up self- employment.

Discrimination is another possible reason for the under representation of Muslims in public employment. This is hard to establish, however, because there is obviously no discrimination at the level of rules of recruitment at the formal level. But there could be discrimination or a perception of discrimination in interviews for selection for civil services. This perception is evident from a number of court cases indicating that Muslims feel that they are adversely affected by selection biases.76 Whether true or not the fact is that a large section of the Muslim community harbours a perception of discrimination against it. The SCR cites a number of instances of discrimination against the Muslim community. For example, many Muslims complained to the Sachar Committee in the course of its meetings with stakeholders in different parts of the country that they were not able to get bank loans from nationalized banks, while others said that it was difficult to sell or buy property. While educational backwardness is certainly an important factor, it cannot be responsible for the huge extent of under- representation of Muslims in the public services, especially at lower levels which do not require major educational qualifications. It can explain to some extent the under-representation in the higher levels of

298 jobs but it cannot account for their near-complete absence from the lower levels of employment, for instance, at the level of Class IV jobs of drivers, messengers, constables, etc. For example, in 2003 when the Archaeological Survey of India (ASI) was asked to excavate the Babri mosque site at Ayodhya on the Allahabad High Court orders, it turned out that out of the 55 or so diggers whom it engaged, not one was a Muslim. The court's intervention resulted in the hiring of a few Muslims by the ASI. If the court had not expressed its concern over the complete absence of Muslims, the ASI would not have recruited Muslims and their exclusion would have gone unnoticed.77

Although there is no direct relationship between minority presence in the administration and welfare of minorities, the presence of disadvantaged groups in office and political positions provides opportunities to incorporate the concerns and interests of these groups in the calculations of politicians belonging to a variety of groups. Several governments around the world have made efforts to promote the participation of ethnic minorities because the lack of representation in public institutions and the hierarchies of power make such groups vulnerable to exclusion from the broader policy discourse.78 The experience of SCs and STs shows that presence in public institutions can offset some of the disadvantage that these groups otherwise face. The presence of legislators and administrators belonging to the SCs has promoted policies that reflect the interests of these disadvantaged groups, and legislators have used this influence to increase the incidence of targeted redistribution. Furthermore, it is because of reservation in public employment that a middle class has emerged among them, and this has in turn provided a measure of energy and leadership to the community in its struggle for equity, dignity, and justice.

299 Disadvantaged Muslims

Affirmative action for minorities has always been a controversial issue in India. Historically, the hegemonic majority-minority syndrome and the controversies surrounding Partition have fundamentally shaped how we think about and engage with this policy in relation to religious minorities. This thinking significantly obscures the changing pattern of social stratification and the positioning of various groups (including Muslims) over time. But it is important to bear in mind the historical context and Constitutional debates as they underline the political- ideological roots of this opposition. These ideological misgivings emerged vividly in the course of the public debate as well as the debate in government and policy-making institutions over the recommendations of the SCR, which indicates that to a large extent the contemporary response is very similar to the arguments and positions taken against affirmative action for minorities during the framing of the Constitution. 'The hesitation and the sense of uneasiness articulated at that time continues to reflect in political circles and has led to concerns that reservation for minorities-indeed, any form of special treatment and not just reservation-might again give an impetus to division and separation.

However, promoting the welfare of the disadvantaged is a central responsibility of the state. The founding fathers treated this as a foundational philosophy. This obligation was part of the Objectives Resolution and was later incorporated in the Preamble of the Constitution. Equality and justice have since then been the two central concerns of the Indian state. The Constitution specifically allows for special provisions and enactment of welfare measures for SCs. STs, and socially and educationally backward classes in education or jobs. This has been interpreted as permitting the inclusion of any group regardless

300 of religion, provided there is adequate evidence of their social and educational backwardness. According to this understanding, any community comprises backward and non-backward sections; as there are castes among Hindus there are caste-like formations among Muslims and Christians that have a low social status within the community.

The category of OBC provides a window of opportunity through which disadvantaged groups among the minorities can gain access to public jobs and other social benefits. For the first time, the Kaka Kalelkar Commission declared certain castes/communities among Muslims (and other religious minorities) as backward, and thus brought them within the purview of the official framework of disadvantage.79 The Kalelkar report was rejected by the Central government on the ground that it used caste rather than economic criteria for identifying backward classes. Like the Kalelkar Commission before it, the Mandal Commission noted the incidence of caste-like features among Muslims, and hence the OBC category included Muslims. At the same time, the Commission refrained from using caste as a criterion to identify non-Hindu OBCs as these religions are egalitarian in their outlook. The criteria evolved for this purpose had two conditions: (1) all untouchables converted to any non- Hindu religion; (2) such occupational communities which are known by their traditional occupation and whose Hindu counterparts have been included in the list of Hindu OBCs.80 Based on the data provided by the 1931 census and field survey conducted by the Commission, over 80 groups among Muslims were declared backward. According to the data used, Muslims constituted a little over 8 per cent of the 27 per cent of the OBC population; backward-caste Muslims were over half of the total Muslim population. Various states were directed to implement these provisions with the proportion of reserved positions that would go to

301 them left to state governments to decide.

At the state level, there are three different models for affirmative action for the Muslims/Muslim backward groups. These can be classified into three types: (1) reservation of seats for the entire Muslim community (excluding the creamy layer): Kerala and Karnataka; (2) reservation on the basis of backward caste / biradari, but most of the Muslim groups included, covering 95 per cent of the Muslim population: Tamil Nadu; (3) bifurcation of OBCs into backwards and most backward classes (MBCs), with most of the Muslim backwards in the MBC list:.81 In other words, in Kerala and Karnataka all non-ashraf Muslims (about 80-90 per cent of the total Muslim population) qualify as backwards whereas in the Hindi-speaking states only a few politically and numerically dominant communities (roughly 30 – 40 per cent of the total Muslim population) qualify.

Most states have no separate quota for Muslims. Karnataka and Kerala are an exception to this pattern, as they have included a very large proportion of Muslims in the backward classes. This has been achieved by including Muslims (minus the creamy layer) as a distinct group within the broad category of Backward Classes and then providing them with an exclusive quota. In Karnataka, when Veerappa Moily was chief minister, the entire community was declared backward and a 4 per cent reservation package within the OBC reservation was given to Muslims in 1994 under II category. The state classified Backward Classes into three categories: (a) Most Backward, (b) More Backward, and (c) Backward. No one has questioned this. This measure has led to a substantive rise in Muslim share in the state government services. Within the OBC quota 10-12 per cent was fixed exclusively for Muslims at different levels.

302 Multiple Identities and Minority Quotas

Against the backdrop of the acceptance of the Mandal Commission's recommendations for reservations for OBCs in government employment, campaigns for the inclusion of Muslims in quota regimes began to emerge in the early 1990s. Almost at the same time, there was counter-pressure building up to implement caste-based reservations. During this time, the actors involved in the campaigns included civil society groups like NGOs, Muslim backward-caste and Dalit organizations, Muslim organizations, and political parties such as the Congress, Samajwadi Party, Rashtriya Janata Dal (RJD), and the Left parties. Involved in various ways, several Muslim organizations have been vying with each other to gain recognition, either individually or collectively, backward caste or SC or simply as Muslim.82 Among the most outspoken of these groups are the Pasmanda Mahaz and the All India Muslim Backward Classes Organization. These demands sparked strong disagreements within Muslim communities, in addition to the well-known opposition from right-wing Hindu organizations to any suggestion of affirmative action for Muslims.

A strong and influential section of Muslim leaders favoured reservations for Muslims on a community qua community basis, because in their view 'the entire Muslim community forms a backward class.' This group raised several objections against caste-based reservations for Muslims, as they felt that Muslims did not fit into the OBC category because they are not a caste. They do not accept that caste is more significant than the overall unity of the community. They believe that the philosophy and structure of caste as a superstructure of social discrimination is wholly contradictory to the basic beliefs of Islam, which implicitly emphasize equality and universal brotherhood.83 They

303 want the entire Muslim community to be declared a 'backward class' and given reservations on that basis. These leaders have repeatedly emphasized the necessity of 'cutting the cake' not just horizontally by class and caste but also vertically by religion so as to evenly distribute opportunities in administrative positions, as this is one way of increasing the presence of minorities in the public domain. Since political power resides in the administrative system, it is important that the Muslims too should be given a proportionate share of administrative positions. Basically, the inclusion of Muslims in the OBC list would exclude them and they would stand to lose unless the entire community was declared backward.84

In a memorandum submitted to the National Commission for Religious and Linguistic Minorities (NCRLM) in 2006, the All India Muslim Majlis-e-Mushawarat (AIMMM) suggested that it is impossible to identify and quantify the backward sections of the Muslim community since there was 'simply no authentic data to indicate the population of various religious sub-communities far less to quantify the relative backwardness of Muslim sub-communities among the Muslims or in relation to the other 100 per cent backward communities like the SCs or STs.85 The AIMMM's basic contention was that:

While the so-called low castes among the Muslims in any case enjoy the benefit of reservation as OBCs, though the real problem is faced by the so-called high castes among Muslims i.e. Syeds, Shaikhs, Pathans and so on who were dependent on government employment and on landholdings which they lost since 1947. This problem of the backward sections among the Muslims, not covered by reservations, is the same as those faced by the Hindu high castes cited above. All these 'high castes', Hindu or Muslim, have their share of poverty,

304 unemployment and economic distress and deprivation, and pockets of backwardness. However, poverty and backwardness are much more endemic and widespread among the Muslim upper castes because of relatively lower levels of participation in governance and administration.86

Simultaneously, during this period a number of Muslim OBCs organizations emerged to challenge this position. Their demand for inclusion of Muslims in the OBCs list brought them into direct confrontation with Muslim leaders who were demanding reservation for minorities qua minorities. Belonging to the lower and backward castes, the Muslim OBCs organizations have led and participated in a movement for recognition of lower-caste Muslims on par with the lower castes in the Hindu society. These groups prefer to press for a caste quota for OBC and Dalit Muslims within the OBC and SC reservations.

Their basic contention was that caste exists among Muslims; it has been a pervasive reality for centuries and is not the result of colonial government policies which favoured the so-called upper-caste Muslims. In opposing minority reservations, the OBC Muslim leaders point out that elite Muslims have consciously played identity politics to restrict minority politics to issues such as the Aligarh Muslim University, Urdu, and Muslim Personal Law, while marginalizing the backward classes among Muslims and sidelining the more important issues of educational, social, and economic development of the Muslim masses. This is political strategy designed to perpetuate the semblance of collective monolithic identity is deliberate and helps to project the upper-caste/class Muslims as the representatives of the community. It enjoyed the support of the Congress leadership which backed these sections at the expense of backward-caste Muslims, even though the backward-caste Muslims form

305 the majority of the Muslim population. As a result, the backward-caste Muslims find themselves left out of such government employment as have come the way of Muslims. Thus, they strongly opposed the proposal put forward by some Muslim leaders that all Muslims be declared a backward class and on this basis become eligible for reservations in government jobs and education. This is precisely what the Andhra Pradesh government attempted to do in 2004 and the courts had turned it down.

The debate over stratification patterns among Muslims and who should be included in the officially designated backward categories and benefit from these schemes hinges on the recognition of caste in Muslim society. The heterogeneity of Muslims in India and the existence of caste- like features and status distinctions based on it are well known. There are two aspects to the social stratification pattern which are relevant for assessing the competing demands. The first relates to their disadvantaged position vis-a-vis the larger society. The second relates to the disadvantaged position of sections within the Muslim community that underlines the relevance of internal differentiation in the Muslim communities. Generally, Muslim elites have emphasized the first position. 'This situation has changed somewhat as disadvantaged groups within the Muslim community have questioned the representation of Muslims as a monolithic community. On the other hand, Muslim elites altogether deny the existence of caste among Muslims, arguing that Islam is an egalitarian religion and does not recognize distinctions of caste and status.

Sociological studies of social structure have emphasized the existence of descent-based social stratification among Muslims. Sociologist Imtiaz Ahmad notes that empirical studies which initially

306 took the form of decennial censuses adduced considerable evidence that caste (or caste-like groupings, which is a much later categorization) existed among Muslims and could be identified through a hierarchy of status orders. Before him, anthropologist Ghaus Ansari, using evidence from decennial censuses, argued that Muslims were divided into three broad categories that he called the ashraf (noble born), ajlafa (mean and lowly) and azral (excluded). Each of these categories was further divided into a number of groups, which, following the practice of the decennial censuses, he chose to designate as castes.87

Affirmative Action for Minorities

The preceding section points out that over the past decade numerous activists and leaders have argued that institutional deficits with regard to minorities can only be remedied through minority reservations while others have favoured backward-caste reservations for them. Two decisions of the UPA government - the appointment of the Sachar Committee and then the National Commission for Religious and Linguistic Minorities (NCRLM) headed by Ranganath Misra and its recommendation to provide reservations to minorities, particularly Dalits, in the SC quota, recharged this debate. In this regard, Home Minister Shivraj Patil’s sudden observation in support of minority reservations at the inauguration of the Annual Conference of State Commissioner for Minorities (2008) added fuel to the controversy. He emphasized the need for ‘ingenious’ steps to achieve minority reservations.88 But minority reservations are neither feasible nor desirable, since it is well-high impossible to build a national consensus on them.

Besides political problems, there are practical constraints, most obviously the Supreme Court approved ceiling on the quantum of

307 reservations which cannot exceed 50 per cent. The 50 per cent ceiling established in 1992 makes it impossible to go beyond this maximum without a Constitutional amendment, although states like Tamil Nadu and Karnataka have had reservations far in excess of 50 per cent and courts have not been able to stop them. Reservation for minorities was unlikely to be conceded because it would go beyond the ceiling. Moreover, mandatory reservations are not the best solution to problems of institutional deficit, which is serious and needs to be addressed but not necessarily through reservations. Besides, the number of government jobs is limited and declining in the face of neo-liberal economic reforms and the rapid growth of the private sector. Moreover, in this context it is also worth pointing out that a minority reservation of say i.e. 4.5 percent ensured by the U.P.A. government is a step ahead to uplift the Backward Muslims.

More importantly, it would signal a major conceptual shift in the approach towards minorities, particularly Muslims, who have been outside justice and equity. It would also help to facilitate a radical shift in the very terms of political discourse of the Muslim leadership, which has since Independence occupied itself with identity issues. For both reasons it would signify an integration of Muslims into the national mainstream, build bridges with other oppressed sections, and thus bring an end to their treatment as the historical ‘Other’.

308 REFERENCES

1. Guhan, S. 1991: Reservations; The Tamil Nadu Experience,

Manushi, March-June, p. 48. 2. Radhakrishnan, P., 1990: OBCs and Central Commissions Seminar

(1975) Reserved Features, November, pp. 23-24. 3. Reddy Murlidharan, R. Political Ploys: Frontline, September 29 to

October 12, 1990, p. 21.

4. Id, p. 26.

5. Ibid.

6. Id, p. 27.

7. Ibid.

8. Ibid. 9. Sachidananda, 1990; Welcome Policy: Seminar (375) November,

Reserved Features. 10. Burman Roy, K. 1990: Mandal Commission and Right to

Information, Main Stream, Sep. 25, p. 5 and 35.

11. Patriot, New Delhi, 26.12.1990. 12. Chakravarty, Nitish, 1990: The reservation card: Frontline,

September 1-14, p. 24.

13. Supra note 9 at p. 32. 14. Kalkur, Ashok 1990: Rumpus on the Campus; Frontline,

September 1-14, p. 25. 15. Upadhyaya, Ramesh, 1990: The Bihar Blast Frontline, September

1-14, pp. 24-25. 16. Vyas, Nina 1990: In defence of reservation: Frontline: An

interview with Ramvilas Paswan, September 1-14, p. 27.

17. The Statesman, 29.09.1991.

309

18. Supra note 14 at p. 25. 19. Roy, P.K., 1990: U.P. Compounded Trouble: Frontline, September

15-28, p. 30. 20. Murlidharan, Sukumar, 1992: Political Fudge, Frontline, December

18, pp. 17-18. 21. Reddy, Murlidhar, R.: 1990. Political Ploys, Frontline, September

29-October 12, p. 32.

22. Pande, S.K. 1993. Advantage Janta Dal Frontline, Oct. 8, p. 37.

23. Supra note 20 at p. 18.

24. Frontline September 15-28, 1990, p. 28.

25. Supra note 12 at p. 24.

26. Supra note 21 at p. 32.

27. Id at p. 29.

28. Id at p. 15.

29. Id at p. 27.

30. The Hindustan Times, 21 Sept. 1990.

31. Supra note 20 at p. 95.

32. Supra note 21 at p. 28.

33. Id at p. 32.

34. Supra note 19 at p. 30. 35. Singh, Jagpal 2001: Politics of Harit Pradesh, EPW, August 4-10,

p. 66. 36. Hassan, Zoya, 1998. Quest for Power: Oppositional Movements and Post Congressional Politics in U.P., New Delhi, O.U.P., pp.

102-103.

37. Id at p. 103.

38. Ibid.

39. Ibid. 310

40. Mawdsley, Emma, 1996: Uttrakhand Agitation and other

Backward Classes, E.P.W. January 27, p. 205.

41. Id at p. 208. 42. Chaudhari Kalyan, 1993: The Lalu Prasad Touch, Frontline, Sept.

24, p. 37.

43. Supra note 16 at p. 30.

44. Supra note at 42 at pp. 11-47.

45. The Hindustan Times, Patna, Feb. 27, 1993. 46. Frontel, F. and Roy, M.S. 1990: Dominance and State Power in Modern India, Decline of a social order, New Delhi, O.U.P, Vol. 1,

p. 23. 47. Interview with Uma Bharati on 16.02.1994 as quoted in Jefferlot

1996, p. 415. 48. Pinto, Ambrose, 1994: Politics of Reservation: E.P.W., August 27,

p. 271.

49. Supra note 2 at p. 121.

50. Id at pp. 122-123. 51. Subramaniyan, T.S., 1994: Reservation Ruckus, Frontline, July 15,

pp. 32-34.

52. Id at p. 119.

53. Id at p. 120.

54. Frontline March 30 – April 12, 1991 at p. 31. 55. V. Santosh Kumar: Social Justice and the Politics of Reservation in India: The Post Mandal Phase, 2008, Mittal Publications, New

Delhi, pp. 177-181. 56. Vardarajan, Sidharth 2006: Coming to terms with Indias missing th Muslims, The Hindu, 4 Nov.

311

57. Weiner, Myron 1983: The Political Consequences of Preferentrial Policies: A Comparative Perspective, Comparative Politics, Vol.

16, No. 1, Oct. 58. Jenkins Laura Dudley 2003: Identity and Identification in India:

Defining the Disadvantaged, Routledge Curzon, London. 59. Wright, Theodore, P. 1997: A New Demand for Muslim Reservations in India, Asian Survey, September; Hasan, Zoya 2005: Reservation for Muslims, Seminar No. 549, May, pp. 853-

854. 60. Deshpandey, Satish 2008: Quota Sans Creamy Layer in Education? th Economic Times, 16 April.

61. Supra note 58. 62. Report of Ministry of Personnel Public Grievances and Pensions

2007:

63. S.C.R. 2006, pp. 165-75.

64. The Indian Express, 20 Oct. 2006.

65. S.C.R. 2006, pp. 17-71.

66. Ibid.

67. Ibid. 68. Khare, Harish 2002: The Business of Separatism, The Hindu, 15th

May. 69. Harriss White, Barbara 2002: India’s Religious Pluralism and its implications for the economy, working paper No. 82, QEH

Working Paper Series, University of Oxford. 70. Sikand, Yoginder 2006: Muslims in India since 1947: Islamic

Perspective on Inter Faith Relations, Routledge Curzon, London.

312

71. Barooah, Vani, Amaresh Dubey and Sriya Aiyyar 2007: The effectiveness of job reservation, Caste, Religon and Economic

Status in India, Development and Change, Vol. 38, No. 3, May.

72. Ibid. 73. Hasan, Mushirul 1998: Legacy of a Divided Nation: India’s

Muslims since Independence, O.U.P., New Delhi, pp. 271-272. 74. Ahmad, Imtiyaz 1978: Caste and Social Stratification among Muslims in India, Manoher Publishers and Distributors, New

Delhi, pp. 63-64. 75. Robinson, Rowena 2005: Tremours of Violence: Muslim Survivors of Ethnic Strife in Western India, Sage Publications, New Delhi, p.

59. 76. Khalidi, Omar 2005: Muslims in Indian Economy, Three Essays,

New Delhi, p. 16. 77. Habib, Irfan 2006: Muslims in India: Some Issues for State Action,

Social Scientist, Vol. 34, No. 3-4, March-April, pp; 244-245. 78. Wilkinson, Steven 2005: Votes and Violence, Electoral

Competitions and Ethnic Riots in India, O.U.P., New Delhi, p. 42.

79. Report of the Backward Class Commission, 1955.

80. Ibid.

81. S.C.R. 2006, p. 198.

82. Supra note 58. 83. Ansari Shabbir 1996: Memorandum from President of the All India Muslim, OBC Organization to Welfare Minister, B.S. Ramuwalia,

16 September.

84. Supra note 59 at p. 854. 85. AIMMM, Memorandum Submitted NCRLM, The Milli Gazette, th Delhi, 10 Feb. 2006. 313

86. Ibid. 87. Ansari, Ghaus 1959: Muslim Casts in Uttar Pradesh, Ethnographic

and Folk Culture Society, Lucknow, p. 33.

88. The Times of India, 19 Jan. 2008.

314 PART IX

CHAPTER – I

RESERVATION AND EQUALITY OF OPPORTUNITY IN EDUCATIONAL INSTITUTIONS, PUBLIC JOBS AND LEGISLATIVE HOUSES

The Education Commission (1964-66) observed that “growing awakening among the masses who, suppressed for centuries, have now awakened to a sense of their rights and are demanding education, equality, higher standards of living and better civic amenities. This explosion of expectations has also to be met through a planned programme of national development”. The International Commission on the Development of Education (1972), in its introductory part of the report, Learning to be insists that “Indeed the most significant change in the World of education should be the advent of democracy which will be living, creative and evolving for this to be achieved social structures must be changed and the privileges built into our cultural heritage must be reduced”.

In a situation of the type that we have in India, it is the responsibility of the educational system to bring the different social classes and groups together and thus promote the emergence of an egalitarian and integrated society. For this purpose we must move towards a system of public education, which will be open to all children irrespective of caste, creed, community, religion, economic conditions or social status and strive for the rapid development of the weaker sections of the society by giving some preferential treatment for a period of time

315 to these weaker sections so that they may join the mainstream of national life at the earliest possible time.

Constitutional Provision:

The preamble to the Constitution of India expresses and guarantees in unequivocal terms justice, liberty and equality of opportunity to all its citizens and to promote fraternity assuring the dignity of individual.

The Constitution (First Amendment) Act 1951 added clause (4) to Article 15 to provide for reservation of seats to backward classes of citizens, Scheduled Castes and Scheduled Tribes in public educational institutions as well as to make other special provisions necessary for their advancement.

Policy outlined in the Draft National Policy on Education (1979):

The Draft National Policy, 1979, declares as far as weaker sections of society are concerned, that “incentives such as midday meals, free textbooks, stationery and uniforms should be provided to poorer pupils. Special attention should be given to “the education of girls and children of Scheduled Castes and Scheduled Tribes”. At secondary stage, “Facilities for secondary education will have to be expanded in rural areas and the smaller towns in order to reduce the gap between rural and the urban population. Special efforts will be made to provide access to the weaker sections”. At the higher levels of education, the policy, while insisting on admission on selective basis, however, pleads for some preferential treatment, saying, “Due safeguards however, have to be provided to ensure accessibility of these institutions to first generation learners, Scheduled Castes and Scheduled Tribes and other disadvantaged groups”. Thus “while there has been considerable expansion in all sector of education in our country, imbalances and inequalities still persist.

316 Girls, Scheduled Castes and Tribes, landless labourers, backward classes and urban slum poor generally continue to lag behind in education. Special effort must be made to bring all such people into the fold of education”. In the search for talent, “scholarships and fellowships based on merit cum means should be earmarked for rural backward areas and weaker sections, to ensure that talented students from the weaker sections of the population are identified and helped to acquire good quality education”.

Thus, the Draft National Policy, which emerged from the Conference of Education Ministers of States and Union territories July 13-15, 1978 and finally presented to the Parliament in April 1979, realizes that as a national policy special attention should be paid for the educational advancement of the weaker sections of society.1

Evaluation of State Policy:

It has been the policy and endeavour of Government to accord high priority to the accelerated development of the weaker sections viz., Scheduled Castes, Scheduled Tribes, Backward Classes and other economically backward people in pursuance of the Constitutional provisions. The Government policy gets translated into action with the implementation of various programmes of educational facilities, which are meant to remove all constraints operating upon the individual of these weaker sections and his environment and ultimately help them to join the mainstream of national life. Education is a pre-requisite for any developmental programme and therefore it should find an important place and priority over all other welfare programmes.

There are children of school going age, who are not yet been enrolled in schools. Proper efforts are to be made to motivate their parents and provide facilities for their admission in schools.

317 In certain cases, a large-scale wastage is noticed due to lack of provision for sufficient incentives, attractive school buildings, teachers and efforts to retain the enrolled child in school.

Above all, is the lack of commitment on the part of the personnel responsible for implementation, and the exploitation by vested interest both within and outside the weaker sections. The incentives like, clothes, note book and textbooks, are not upto the mark, they are not supplied in time and in accordance with the needs of the children.

No empirical study was conducted to evaluate the programmes and assess the real needs of people of weaker sections, to accelerate the development of these people at the earliest possible period.

In number of cases, the financial assistance provided is not reaching the deserving because of various factors, even if it reaches some, only after lot of delay and in some cases not fully.

In many cases the scholarships and other concessions provided to schoolchildren are not being used for their betterment, instead the money being misused by their parents for their own ends. There is a general complaint that some people are producing false certificates of caste and income to get benefit out of these concessions.

Some students, especially at post-graduate level, are using these benefits more than once, at the cost of the benefit of other deserving pupils.

There is a general complaint about some beneficiaries that they are very little bothered to improve their educational standards, consequently, the results of educational institutions are continuously poor.

The tutorial facilities are not properly planned and the special coaching provision for SCs and BCs is not being utilized properly by the

318 students. The scheme, sometimes; is started at the fag end of academic year.2

Possibility of Negative Impact:

Originally the provisions for reservations were meant for ten years from the commencement of the Constitution in 1950. But this has been extended and there appears no end. This kind of reservations along with special treatment, to a special section for a long period, is a clear denial of rightful opportunities guaranteed under Article 14 to all other sections of people and may result in social inequality and frustration among many of the intelligent and brilliant children of so-called forward classes people.

It is often stated that the policy of reservations is tending towards the deterioration of educational standards, especially professional and technical courses. In this connection the Supreme Court of India observed that, “The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the country is so great that it would cause grave prejudice to national interests if considerations of merit are completely excluded by whole-sale reservation of seats in all Technical, Medical or Engineering colleges or the institutions of this kind. Therefore, considerations of national interests and the interests of the community or a society as a whole cannot be ignored”. It adds “if admission to professional and technical colleges is unduly liberalized it would be idle to contend that the quality of our graduates will not suffer”.

A considerable portion of state income is specially being spent on these weaker sections, but some of the vested interests among them are exploiting the situation in their favour, consequently, the deserving are still neglected. The complacence on the part of beneficiaries and undue

319 use of benefits by a few is a hindrance in the rapid development of these weaker sections.

Finally, the perpetuation of reservation and special treatment to a particular section, is reversing the age old injustices perpetrated on these weaker sections, to the so-called forward classes, and after some period, the so-called forward classes may become the weaker sections and social imbalance being created once again in society.

Job Reservation

Article 335 states that the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the union or of a state; and the Article 16(4) states 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. The above two Articles form the bedrock of the entire job reservation policy.

The main objective for providing reservations for Scheduled Castes and Scheduled Tribes in civil posts and services of the government is to give jobs to some persons belonging to these communities and thereby increase their representation in the services, so as to facilitate their social and economic advancement and make due place for them in the society. Article 16(4) of the Constitution specifically empowers the state to make any provision for the reservation of appointments or posts in favour of any backward class of citizens who are not adequately represented in the services under the state.

320 In the Constitution (Scheduled Castes) Order 1950 (as amended from time to time), it has been mentioned that no person professing a religion different from Hindu, Sikh or Buddhist religion can be deemed to be a member of Scheduled Castes. There is however no religious bias for being treated as Scheduled Tribes.3

On the attainment of Independence, instructions were issued on 21.09.1947 providing reservation of 12.5 per cent of vacancies for Scheduled Castes in respect of recruitment made by open competition. In case of recruitment otherwise than by competition this percentage was fixed at 16.2 per cent. After the constitution was promulgated, Ministry of Home Affairs in its resolution of 13.9.50 provided 5 per cent reservation of Scheduled Tribes apart from the percentage fixed for Scheduled Caste's already in force. The 1951 census showed that the percentage of Scheduled Castes in the total population was 15.05 percent and that of Scheduled Tribes 6.31 per cent. The percentages were not revised at that time as a comprehensive bill revising the lists of Scheduled Castes and Scheduled Tribes was under consideration. The other reason for not revising the percentage was that reservation had already been provided for Scheduled Castes in posts filled otherwise than by open competition to the extent of 16.66 per cent and instructions had also been issued for following a regional and local percentage for group C and group D posts attracting candidates from a locality or region. The 1961 census revealed that the Scheduled Castes and Scheduled Tribes population in proportion to the Indian population stood at 14.64 per cent and 6.80 percent respectively. Accordingly, the percentage of reservation for Scheduled Castes and Scheduled Tribes was increased from 12.5 and 5 per cent to 15 per cent and 7.5 per cent respectively on 25.3.1970. The 1971 census did not warrant any such review. The actual impact of 1981 census

321 figures on all India percentages could not be known because the census of 1981 could not be carried out in the state of Assam.4

This is true of 1991 census as the census of 1991 could not be held in the state of Jammu and Kashmir. Reservations have been extended to other modes of promotion in stages. In 1957, reservations was provided for Scheduled Castes and Scheduled Tribes in departmental competitive examinations. Reservation in promotion by selection in group C and group D were provided in 1963 and in the same year reservation in departmental competitive examination was limited to group C and D only. The position was slightly changed in 1968 when reservations in limited departmental examination to group B, C and D and promotion by selection to group C and D were subjected to a condition that element of direct recruitment should not exceed 50 percent. Reservation in promotion by seniority subject to fitness came in 1972 subject to the condition that the element of direct recruitment does not exceed 50 per cent. In 1974, reservations in promotion by selection from group C to group B, within group B and from group B to the lowest rank of group A were introduced provided the element of direct recruitment does not exceed 50 percent. The limitation of the direct recruitment not exceeding 50% was raised to 66.2/3% in 1976 and 75% in 1989. The Supreme Court in the Indra Sawhney case permitted the reservation for Scheduled Castes and Scheduled Tribes in promotion to continue for a period of five years from 16.11.92. Consequent to this judgement the Constitution was amended and Article 16(4A) was incorporated. In pursuance of this Article, instructions have been issued on 13.08. I 997 to continue reservation in promotions for Scheduled Castes and Scheduled Tribes in service/posts under the central government beyond 15.11.1997 till such time as the representation of each of these categories in each cadre

322 reaches the prescribed percentages.5

Apart from providing reservation, the government have also given numerous concessions to Scheduled Castes and Scheduled Tribes in direct recruitment as well as promotion and infrastructure has also been built up, which contains procedural safeguards and institutional safeguards.6

Political Reservations

Article 330 provide reservation of seats for Scheduled Castes and Scheduled Tribes in the house of the people.

(1) Seats shall be reserved in the house of the people for

(a) The Scheduled Castes.

(b) The Scheduled Tribes except (i) in the tribal areas of Assam, (ii) in Nagaland, (iii) in Meghalaya, (iv) in Arunachal Pradesh; and (v) in Mizoram.

(2) The number of seats reserved in any state (or Union Territory) for the Scheduled Castes and Scheduled Tribes under clause (i) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that state (or Union Territory) or of the Scheduled Tribes in the State (or Union Territory) or part of 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).

(3) Notwithstanding anything contained in clause (2), the number of seats reserved in the house of the people for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number

323 of seats allotted to the state a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bear to the total population of the state.

Article 332, provides reservation of seats for Scheduled Castes and Scheduled Tribes in the State Legislative Assemblies:

(1) Seats shall be reserved for the Scheduled Castes and Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in Nagaland and in Meghalaya, in the Legislative Assembly of every state.

(2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam.

(3) The number of seats reserved for the Scheduled Castes and Scheduled Tribes in the Legislative Assembly of any State under clause(1) shall bear, as nearly as may be the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are reserved, bears to the total population of the State.

Article 334 provides the time limit for political reservations. The Article states that: Notwithstanding any thing contained in the foregoing provisions of the part, the provisions for this Constitution relating to:

(a) The reservation of seats for the Scheduled Castes and Scheduled Tribes in the House of the people and in the Legislative Assemblies of the States; and

(b) The representation of the Anglo-Indian Community in the House of the people and in the Legislative Assemblies of the States by nomination.

324 Shall cease to have effect on the expiration of a period of 60 years from the commencement of the Constitution:

Provided that nothing in this Article shall affect any representation in the House of the people and in the Legislative assembling of a State until and dissolution of the then existing house or Assembly, as the case may be.

Article, 243 D provided for reservation of seats for Scheduled Castes and Scheduled Tribes in every panchayat.

Through Article 243 M of the Constitution of India a new clause (3A) was inserted to exempt the State of Arunachal Pradesh from the application of Article 243 D relating to the reservation of seats in panchayats for the Scheduled Castes since no Scheduled Castes existed in that State.

Part IX and part IX A of the Constitution respectively permit the legislature of a state to make provision of seats in panchayat and municipalities in favour of backward classes of citizens.

Article 243 T provides for reservation of seats and offices for Scheduled Castes and Scheduled Tribes in municipalities.

Article 244 & 244A provide for specific provisions for the administration of scheduled areas and tribal areas.

Article 164 provides for a minister in charge of tribal welfare in Bihar, Madhya Pradesh and Orissa. He will also be in-charge of the welfare of the Scheduled Castes and backward classes.

One of the purposes in providing such political reservations was to enable the Scheduled Castes and Scheduled Tribes members to voice the grievances of the oppressed sections in general and the Scheduled Castes and Scheduled Tribes in particular; they were also expected to bring

325 pressure on the government. With a view to rectify the injustice done to their communities. However, they are faced with cruel dilemma, if they ventilate the grievances of their communities they are branded as Harijan or Adivasi leaders; if they do not do so, they are alleged to be adopting an elitist attitude and ignoring their brethren.7

Political reservations do not involve separate electorates: i.e., the representation of a particular group by legislators chosen by an electorate composed solely of members of that group. The seats are reserved, in the sense that candidates who stand for them must belong to the specified groups, but the entire electorate participates in choosing among candidates so qualified. Separate electorates for parliament and the state legislatures are specially outlawed by Article 325, which provides that no person shall be excluded from any electoral roll on grounds of religion, race or caste.8

An ideal course, of course, is to encourage Scheduled Castes and Scheduled Tribes candidates to contest from non-reserved constituencies. It is the responsibility of the dominant groups in general and the top leaders of the political parties in particular to see that Scheduled Castes and Scheduled Tribes candidates get elected from the general seats. Such a course can generate confidence among the deprived groups and gradually they get integrated in the mainstream. For some time the major political parties have tried this strategy and encouraged at least a few Scheduled Castes and Scheduled Tribes persons to contest and have seen that they could win from unreserved seats. However, after the 1962 elections the number of Scheduled Castes and Scheduled Tribes persons elected from unreserved constituencies have declined.9

The constitutional provision of reserved seats in complemented by statutory provision to enhance political participation by Scheduled Castes

326 and Scheduled Tribes. Smaller election deposits are required from members of these group and candidates for reserved seats enjoy more permissive residence requirements. There is no reservation of seats in the indirectly elected upper houses at both centre and states. The Rajya Sabha at the centre is elected by proportional representation by the members of the State Legislative Assemblies. The upper houses in those State legislatures that have them are chosen by a more complicated formula combining election by the lower house, special qualified constituencies and governmental nominations.10 It is widely believed that reserved seats legislators are less articulate, less assertive and less independent than their fellows. They were less likely to hold party office, to serve on select or standing committees, to hold ministerships, to contribute to debate, and to talk to ministers.11 Though there have been nearly 100 Scheduled Castes and Scheduled Tribes elected from reserved constituencies in parliament, many dalit organizations feel that these elected members have not had much success in advancing the cause of Scheduled Castes and Scheduled Tribes. The most common reason citied for this is that in a joint electoral system where the interests of caste Hindus and Scheduled Castes and Scheduled Tribes are generally apposed, an Scheduled Castes and Scheduled Tribes member can never function at his/her best level. These members are left with no alternative but to be obedient to their parties.

Forceful, but isolated voices of dissent have therefore been protesting against the joint electoral system that the system of reservations in legislatures has been extended by government ritualistically every 10 years. However, in spite of these severe handicaps Scheduled Castes and Scheduled Tribes in the legislatures are making a difference.12 Reservation in legislatures is designed to empower

327 Scheduled Castes and Scheduled Tribes and through legislatures a few become ministers, which enables them to work for the betterment of their communities and constituencies. The fact that representatives of Scheduled Castes and Scheduled Tribes ministers symbolize the opening of doors, which had remained shut historically.13

The Constitution of India provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the Lower House of parliament and in the state legislatures (Article 330 & Article 332 respectively). When the Constitution was enforced in 1950, the reservations were to cease after 10 years. However, having regard to the conditions of Scheduled Castes and Scheduled Tribes, the Constitution has been amended from time to time, and the period of 10 years, then to 40 years and then to 50 years.14

After 59 years of Independence, it is unfortunate that Scheduled Castes and Scheduled Tribes are still living in poor condition. They are given isolated maces to live. In villages they are not allowed to enter temples, they are not allowed to take water from all wells, they are given only specific jobs to continue and they are subjected to atrocities. Since disabilities flowing from the centuries old caste system still persist, it is necessary to continue the existing pattern of reservation for Scheduled Castes and Scheduled Tribes.15

The representation of Scheduled Castes in the central council of ministers has increased marginally in absolute numbers from 6 to 7 during the period between 1991 and 1999. However, their representation as a percentage to the total has declined from 10.5 percent to 9.5 per cent over the same. As regards to state legislative Assemblies, out of 3,997 members, 557 MLAs belong to Scheduled Castes and 315 members belong to Scheduled Tribes. The representation of Scheduled Castes in

328 the political decision making institutions at various levels has been quite impressive, through yet to receive their due share in Panchayati Raj institutions, the share of Scheduled Castes stood at 14.3 per cent in 2001, their share in State Legislative Assemblies was 13.8 per cent in 2000 and 14.5 percent in the Loksabha in 1999 period. Of the 7 Scheduled Castes in the central council of ministers in 1999, 3 are of cabinet rank and 4 are ministers of state.16

It may not be out of place to point out here that the Scheduled Castes have invariably have had better representation in the government in the form of holding ministerial portfolios or other positions like state governors through the years.

In short, tribes have not been able to carve out a space akin to that of Scheduled Castes in national politics.17

Dr. Ambedkar felt that political power was crucial for obtaining all other rights. He fought for the legitimate representation of Scheduled Castes in the political process in the country. He succeeded in getting for them in the legislature and in the parliament.

If we look in to the contributions of the Scheduled Castes and Scheduled Tribe legislators to the cause of their own brethren reveals that it was marginal. Many of these members in the parliament and State Assemblies do not play a very active role. Some of the main reasons for their poor performance are said to the their educational backwardness, inferiority complex and lack of courage. The most important reason perhaps is their dependence on political parties. A legislator elected from a reserved constituency cannot afford to antagonize the majority community because his success depends on their votes, not on the votes of the Scheduled Caste people, Hindus who are invariably in majority would prefer to have such men representing a reserved constituency who

329 would respect them and would refrain from doing or saying anything which goes against the interest of the majority community.18 Secondly, the oppressive forces in the respective political parties will never allow the Scheduled Caste and Scheduled Tribe members to voice the genuine demands of their communities.19 Third, the political leaders belonging to these sections, have to depend on the forward communities for their votes. In the process, they cannot afford to forego the support by voicing the problems of their own community whatever may be the competence or otherwise of the members belonging to this social bracket, perhaps this is the only provision which has been more or less implemented by the government without much problems.

330 PART-IX

CHAPTER-II

NEED FOR RESERVATION IN PRIVATE SECTOR

“I’m not against reservation, but it should be based on economics and not caste. If a person is hampered by resources, I think those people should be given reservation.”20

- N.R. Narayana Murthy, Chairman and Chief Mentor, Infosys

“If our hands are tied behind our backs, we cannot race ahead. Many of us employ people from these classes and everyone is treated on merit. Why then create an artificial division within employees?”21

- Arun Bharat Ram, Chairman, SRF

“Reservation will not increase job penetration for the lower sections. Industry is already disadvantaged with high cost, bureaucracy and delays. You can’t add one more and expect us to produce growth,”22

- Rajeev Chandrashekhar, Chief, BPL Innovision

“We’re ready to initiate a public-private partnership where we can make such people more employable through training programmes. But we’re not ready to compromise on merit. This will have a negative connotation in the external world and FDI may be affected.”23

- N. Srinivasan, Director-General-Designate, CII

This is the way the economic leaders of the so-called India reacted to the idea of bringing in reservations for the backward castes in the private sector. Outlook, an English magazine has published their views in its issue. “Not a single businessman Outlook spoke to was pro-reservation

331 on caste basis. Most were anti-any sort of reservation, while some felt if it has to be there, it should be on economic and not caste basis. The unanimous view: in a competitive scenario only merit and performance should matter.”24

The tone and tenor of these reactions against reservations from the corporate leaders itself should be the reason enough for bringing in reservations in the private sector. The bias and prejudice against the so- called low caste people that these reactions reflect, illustrates clearly that if not specifically mandated, the private sector will not touch a Dalit with a barge pole. The underscoring premise of these arguments is so poisonous that it dismisses even the possibility of merit and capability in these people. All of them sing in unison their casteist song that the influx of the backward classes in their fiefdom will erode their ‘merit’. None of them reflected a possibility that there could be people from these castes with requisite merit and capability. None of their statements remotely appreciated the naked reality that despite possessing these attributes, people from these oppressed communities would not get entry to their fiefdom, would not get their dues from the Indian society.

Somehow, reservations are construed at concessions extended with the intent of uplifting these low caste people. There is never an iota of reference to the intrinsic disability of the Indian society to treat all people equally and justly, which necessitates externally imposed mandate of reservations. The former, that is, extending a helping hand to uplift these downtrodden people, may be a point but certainly not a major one. Had it been otherwise, there is no justification for restricting the scope of reservations only to the SCs and STs; for there are scores of other communities including the Brahmans having people who certainly needed such a helping hand from the state. The real reason for reservations is the

332 latter. The former connotes just the economic dimension and implies the SC and ST communities statistically come on par with the rest of the population; the reservation should come to an end.

Merit: A Spurious Ploy

Merit is the patent and permanent argument against reservation, which is thrown around as though it were self evident. That is the reason we find every argument against reservations as sampled above contains elements of merit. Surprisingly, none has adequately nailed this lie about merit. If at all, the apologetic arguments from pro-Dalits circles that tended to reason out their lack of competitive merit in terms of their poor material conditions has only served to reinforce adversary argument and embolden its perpetrators. The simple fact is that the entire argument of merit is a bogus ploy. What is merit? They will never tell you what they mean by merit. I tried to search for a definition of this often repeated word, but could not find any specific definition. So much organizational politics is played on this word that it has become devoid of any meaning whatsoever. Earlier times, people seemed to mean by merit as the scholastic performance, academic rank, marks etc. It was seemingly used against the Dalits at the beginning because they apparently lacked in these aspects. Here, precisely those apologetic arguments were being used that a Dalit boy getting qualifying marks with all kinds of material deprivation was more meritorious than his upper caste counterpart who had all kinds of material amenities and cultural endowment. But soon thereafter, when the Dalit students started coming out with equally good marks and even topping the merit lists, the definition of merit started becoming vaguer and vaguer. They started adding performance, which blissfully was not measurable. When performance became measurable, thanks to technological advances in management and information

333 technology, they could attempt to make performance measurement objective. However, they choose to do the opposite. They invented and introduced many esoteric psychometric parameters, which lately culminated into ‘personal potential’. The measure of merit has become so amorphous that it is not your scholastic performance, it is not how you performed, it is not your concrete contributions, but some weird parameters and ‘their’ assessment of your potential that determine what you are and what you become. Merit thus, just means which it always did-‘their’ opinion about you. If this is the definition of merit, is it not a circular logic to expect a Dalit to have it?

And what is the merit of those who are hampering on merit? If merit is defined in terms of actual results, actual performance, which it should be, then the merit of the upper caste elites comes out glaringly through the pathetic state of the country in the country of nations Shouldn’t their merit be measured by the history of slavery they gave this country. Certainly, there were no Dalits around then to meddle in their affairs; they were condemned not to have even their shadows pollute theirs. What would they say about these hard facts of incontroversible history? Was it their merit that anybody could just walk in with a handful of people and lord over this vast country not for a year or two, not for a century or so but for over a long millennium? Even after independence, for almost two decades, despite the constitutional reservations having come into effect, there was hardly any Dalit around to demoralize them with inefficiency. They ran this country virtually without any hindrance. Does it not reflect their merit, or a lack of it, that India despite its unique endowments languished around the bottom, whereas many similarly placed countries passed it by in every aspect of development?

334 What is the merit, if one may ask; of Ramkrishna Bajaj who is so vociferous in opposing the idea of reservations in private sector; that he has virtually came to represent the private business and industry? If he had not inherited the wealth and empire his father and grandfather left, what would he be? The entire merit and capability game reduces down to the inheritance. Even, the Narayan Murthys of this world and the entire tribe of so-called self-made people also need not think they are exceptions. They may not have inherited wealth as Bajaj did, but they have certainly inherited their caste and all that goes with it in India. Their socio-cultural inheritance naturally endows them with all the abilities and lends access to networks, which are considered invaluable in business all over the world, and more so in India. Whatever romantic stories are painted about these self-made people, need to be qualified that they are only applicable to their ilk; they may be self made people in relation to the savarna people; not in relation to an avarna Dalit. A Dalit, inherits not only his caste and poverty at his birth, but also all the imaginable humiliations that are associated with it. Howsoever, if he wants to forget and ignore, the society repeatedly reminds him that he cannot. If Ramkrishna Bajaj claims inheritance as his merit, he must realize that he is essentially using the same logic that created and sustained the caste system. It is not a meritocratic argument any more. If he persists with that, it itself becomes a justification for extending reservations to the private sector.25

There is no consistency in the argument of merit by the opponents of reservation, moreover. If their merit can be dismissed on empirical grounds, applying similar logic to their recent euphoric version merit of Dalits, can be circumstantially inferred, if one concedes that India has made praiseworthy progress in recent years. Lately, the upper caste elite

335 appear to be elated about the progress made by India, which was manifested in their slogan “India Shining” during the last general elections. Notwithstanding that most of them attribute it to the private sector, and thereby build their argument in favour of the Reforms. Notwithstanding these claims, there is no statistical evidence for the public sector lagging behind. Also, the bureaucracy that created the congenial policy framework, and operated it to facilitate this progress also could claim its share of the shine. What has changed in the human resource composition of these sectors is perhaps only the rising percentage of the Dalits and Other Backward Classes. One could argue in the light of this fact that India’s spectacular progress should thus, be attributed to Dalits. No doubt this would be taken as puerile, but then they should also understand that their own arguments that the Dalits lack in merit is far more baseless and puerile than this one.

Further Proof of Their ‘Merit’

There is a clear case in this context that directly and incontrovertibly exposes spuriousness of this ‘merit’ argument. Unfortunately, it never surfaced in any discussion so far and hence, people scarcely knew about it. In the euphoric days following the adoption of the International Monetary Fund (IMF) sponsored economic reforms by the government, the latter allowed the Public Sector Units (PSUs) to float joint venture (JV) companies in the private sector with suitable private company to contribute 50 percent of its equity. Besides being a masked move to privatize operations of the PSUs, it served a longer standing demand of the PSU managements that they should be unshackled from the PSU framework if the government wanted them to perform. The argument invariably referred to the ‘reservation’ policy that burdened them with inefficient and incapable people. Not only that these

336 people would add to the wage bill, but would also lower the standards of efficiency in organization. Implicitly, it meant that if they were allowed to perform without these constraints, as a normal private sector company would be, they could demonstrate their entrepreneurial prowess and managerial competence. Soon after the government cleared the proposition, most cash rich PSUs jumped onto this JV-bandwagon and formed private companies, not only with Indian companies, but in some cases with the multi-national corporations (MNCs). These companies were manned by the select ‘blue eyed’ boys with remuneration package, which were scandalously inflated to be comparable with the best in the market. Needless to say that there was no SC/ST, not even a clerk, to pollute the hallowed corridors of efficiency of these companies. Taking shelter under the technical definition of PSU as having minimum 51 percent of public equity in them, the PSU equity in these point venture companies was restricted to just 50 or 49 percent. There should be no doubt that these companies, were not the ordinary companies but the demonstration pieces for proving a longstanding claim against the reservation policy of the government that it marks the efficiency of PSUs. However, contrary to their mission, most of these companies have gone sick, most had to write off their capital and close down. The ones that are surviving are being strategically supplied with PSU oxygen in various forms. Does it not conclusively refute the ‘merit’ argument of the upper caste elites once for all? Does it not expose their entire canard against reservations as a white lie?

Erroneous Discourse

The discourse on reservation in the private sector has begun with a wrong implicit premise much like that of the original idea of reservations itself. The premise behind reservations as a mechanism to render a

337 helping hand to the people who were oppressed socially for a long time was basically wrong. It should have been projected as a countervailing force to the socio-cultural disability of the Indian society to treat people from certain communities equally. In corollary, this force should have pervaded all the sectors of society (economy). As the premise behind reservations was wrongly conceived, so was the premise behind reservations in the context of decimation of the public sector, which is happening under globalization-policies of the government. The corollary of this conception will mean that if the government does not private the public sector, there may not be any need of reservations. The right premise behind reservations in the private sector would necessarily involve re-articulating the basic premise behind the constitutional reservations as stated above that it is a countervailing measure by the state against the socio-cultural disability of the Indian society. This disability does not restrict only to the state for restricting the domain of reservations to the state sector. Rather, it pertains more to the civil society than the state, which is supposed to be enlightened enough to see the need for reservations. The premise behind reservations in the private sector thus, should be restored as the belated correction to the original premise behind the reservations. It is a mechanism with which the rights of certain sections of the society are ensured because left to itself, the society will never allow them to exercise these rights

Thus, there cannot be any question about reservations in private sector or any other sector so long as these sectors belong to India. Dalits have their inalienable right to partake their due share of whatever exists in whichever sector until the societal disability is done away with. It is not open for negotiation. If the upper caste elites want reservations to go, they should come forward to work for removing these societal disabilities,

338 rather than cribbing against reservations. Reservations are like a bitter pill for some chronic disease, which cannot be perennially good for anybody. Nobody likes to take bitter pills without a reason. Pills however, can be stopped only after the disease is gone. Reservations are not in the interests of the Dalits either. They do not come without any cost to them. The Dalits should realize that they have already paid huge costs for reservations, so huge that in the ultimate cost benefit analysis, it may be disputable whether they are beneficial to them in net terms. Reservations, for instance have marred their rebellious zeal and co-opted them into the system; as observed above, they have converted a cream of Dalits into a comprador class, which parrots the anti-Brahmin slogans in abstract, but serves the interests of Brahmanism. They have led them astray from their long terms emancipatory project of annihilation of castes. Dalits have developed genuine vested interests in continuing with castes so that the crutches of reservations are perennially available to them. No, reservations will do good to the Dalits; they are just a tractical measure to safeguard their livelihood concerns; they are the means of protection from the communal onslaught of the upper caste elites. They are needed, but not as a panacea; just as a pill to be discarded as soon as you recover.

Political Will

The issue behind the reservations in private sector is of sanatan kind. The issue is whether there is a political will behind these moves? How will these reservations implemented? Whether these reservations will amplify costs than accruing benefits to Dalits? These issues are not at all new; they were associated with the existing type of reservations, and over the years they have only been validated by the practice.

As regards the political will; it has always been calibrated with the consideration of the electoral politics. There is no doubt that the

339 reservations were a containment strategy of the landlord-bourgeoisie ruling classes. Without reservations, it is inconceivable how such a mass of ‘proletariat’ could have been managed. Reservations were a stratagem to create a stake for them in the system, which has been more than successful as we see it. Today, when the demand for the reservation is voiced from the Dalit circles, these classes are rushing forward to grab it. BJP grabbed it saying that they will start discussions on it with all concerned. The Congress came out with it in the manifesto. The CMP of UPA government promises it, and surprisingly, there is no tangible opposition to it except from the Shiv Sena. While, there is an approximate consensus on the issue among all the ruling class parties, there are adverse reactions from the bourgeoisie. They came out with all kinds of alarms as given at the beginning. This duality has always been the bane of the Indian political system. The political class that represents the ruling classes takes certain populist stands, but the latter opposes it, and creates an illusion that the political classes are independent of the ruling classes.

Even, the existing type of reservations that are mandated in the Constitution,26 suffer from a lack of political will. If there had been a political will behind reservations, its implementation would not have been in such a pathetic state. Even, after decades of its implementation, the representation of the SCs and STs in the class I and II services, which approximately may be considered as on the margins of power, is still much below the prescribed level. It took decades for people to reconcile with them and realize that their compliance does not necessarily mean devolution of power. They did not mind filling up vacancies in a depreciated organization structures at the levels sans power. These people had to climb up 9 to 10 rungs of organizational ladder to reach positions of power. This process remained entirely opaque and in the hands of

340 traditional upper caste elites. They naturally ensured such SCs and STs members who will be externally belonging to SCs and STs, but will internally be aligned with the upper caste elite. The entire process is run so roughshod that there is hardly any hope of correction.

Not unconnected entirely with the political will is the issue of implementation. How will the reservations in private sector be implemented? Public sector is consciously carved and is well organized with established structures, processes and systems. One can easily see the quantum of reservations based on the percentage. Even, in the quota system, one can prepare the roster. The private sector is mostly unorganized without any structure, systems, and established processes. Even, the organized section in it comprising of big industries, etc., of late, adopted flexible structures, which were dynamic enough to make it difficult to implement reservations. Many people work on project based organizations, in which the teams are formed in a matrix for a set of tasks and then dismantled. Even the remuneration packages of people holding similar designation could vary a great deal. It is not the reservation, but the order in the organization that is prerequisite for reservations that the private sector might be firstly scared of. This peculiar order that keeps the employees of the private sector always on tenterhook, and thereby, ensures compliance behaviour, characterizes the private sector. The private sector can ill afford to discard this important aspect of control.27

This characteristics of the private sector are surreptitiously entering the public sector too, in the name of the esoteric parameters such as performance, potential, etc. The long pending issue of public sector autonomy is being resolved by the bureaucracy in terms of granting the management of the public sector companies their own domain of rule. They would not grant autonomy in terms of operating freedom to

341 strategize in the marketplace. Backed by the ownership rights of the maximum number of shares in the companies, a bureaucrat imposes his writ on the public sector management. They have in turn granted the space for the latter to rule.

It is not that there is nothing stable in such industries, but in light of the public sector reservations, the private sector reservations appear potentially problematic.28

The business class must realize that their arguments against reservation basically stem from the age-old prejudices in the Indian society vis-à-vis the lower castes. There is absolutely no rationale in them. There is no connection of merit with reservation. Reservation never meant accepting anyone just on the criterion of birth. Reservations simply means that a person having the requisite qualifications for the job should not be denied it just because he or she born in a certain caste. Reservations does not have any connection with efficiency too. The latter is an outcome of many variables, such as organization culture, employee motivation, systems and processes, technology, training, etc. Most of these variables depend upon the management, which is virtually monopolized by the upper caste elites. If a person in the organization is not efficient, the onus must shift to the manager and not to an individual. Reservations do not have any connection with foreign direct investments. The foreign investments do not flow by seeing the caste of employees. For all these years when India was exclusively ruled by Brahmans and Baniyas, foreign investors did not even look at it. They appear enamored with it today because of its huge market, its infrastructure, its trained manpower available at paltry wages, its high interest rates, its political stability, and consequently the expectation of high rate of returns. Who has created this market; it is not a handful of upper caste ‘meritorious’

342 people, but evidently the majority belonging to ‘meritless’ lower castes. Reservations have certainly contributed in creating this market by putting purchasing power in their hands. It may be easily seen that none of the factors that attract foreign investments into the country depend upon a handful upper caste people, but on the contributions of vast masses.

Before taking the debate on reservation in the private sector further, there is a need to re-articulate the concept of reservation in India. Much of the opposition and resistance to reservation can be traced to their wrong conception, which even the supporters of reservation have not contested or corrected. The ubiquitous argument of merit, mischievous advocacy for reservations for economically poor, extension of reservation to the Other Backward Castes implemented as per the Mandal Commission recommendations; the argument of efficiency, erosion of attractiveness of India to the foreign investors, etc., can all be seen clearly in its light. Reservation, in viable terms, can only be conceived as a constitutional contrivance against the disability of Indian society to treat the Dalits equally and justly. Any other way, it will prove to be a veritable carrot that can be endlessly dangled before the masses in order to engage them in perpetual contentious. This premise will clear much of the confusion, and will motivate people to strive for the annihilation of castes. It will catalyse right appreciation of these policies and largely eliminate the cause of social conflict.29

If this conception takes root, it will be easy to reconcile that reservations cannot be artificially restricted to the government and public sectors, and they should be applicable naturally to all the other sectors. Going by the labour theory of value, the lower caste people as the labouring class can rightly stake claim to the entire wealth of this country. But they are not doing so. The upper caste elites better understand that it

343 is the born right of all such people who are socially discriminated against to avail reservation. Reservation in the private sector thus, becomes just a correction to the basic policy enshrined in the Constitution of India. Our Constitution unfortunately implies the constricted premise for reservation; it may need correction by way of suitable amendment. The constitutional experts opine that reservation in the private sector also cannot be implemented without an amendment to the Constitution. It is in the interest of all, that the re-articulated premise behind reservation as suggested above is agreed, and incorporated into the Constitution. Mere policy is never enough. There needs to be a genuine political will backing the policy to get it implemented. This political will not come without pressure from the beneficiaries. The importance of potent Dalit movement here gets underscored. Such a Dalit movement today may sound as a far cry, but then one should also reconcile that reservation in the private sectors will also remain a far cry without a Dalit movement.30

The Dalits must realize the limitations of any kind of reservation. The greatest damage reservations have done to the Dalit interests is to effectively eclipse the Dalit struggle for emancipation. Paradoxically, it is the very struggle that can create requisite political will for the effective implementation of reservation too. The technological advances have lowered the employment elasticity to near zero level, which means that there is not going to be a big space for reservation within the prevailing system. The capacity of reservation to benefit the Dalits can be gauged from the fact that less than 1.7 percent of the Dalits have benefited from it over the last 60 years. Notwithstanding the justification of all pervading reservation until the societal disability is removed by complete annihilation of castes, the talk of catalysing the Dalit bourgeoisie in some circles is not saying the same. The emergence of the Dalit petty

344 bourgeoisie through the reservation process has already been problematic; although nobody can deny its potential utility to the Dalit movement. But, the promotion of an adversary parasitic class within shall be absolutely suicidal to the Dalit interests. There is no alternative for a potent Dalit movement against the present system with neo-liberal (globalization) ethos. There is no alternative for an incessant Dalit struggle for creating a just world order.

345 REFERENCES

1. Sharma B.A.V. Reservation Policy in India, p. 409. 2. Ibid. 3. National Commission for Scheduled Caste and Scheduled Tribes, Seventh Report, 1984-85. 4. Commission for Scheduled Caste and Scheduled Tribe, Sixteenth Report, 1966-67. 5. National Commission for Scheduled Caste and Scheduled Tribes, Fourth Report, 1996-97, 1997-98. 6. Ambedkar, S.N., Reservation Policy, Issues and Implementation, ed. 1st, 2008, p. 62. 7. Shah, Ghanshyam, “Protective Discrimination, Equality and Political Will” in Vimal P. Shah and Binod C. Agarwal (eds.) Reservation: Policy, Programmes and Issues (Jaipur: Rawat, 1986), pp. 3-4. 8. Galanter, Marc, Competing Equalities: Law and the Backward Classes in India (New Delhi: Oxford University Press, 1984), p.45. 9. Shah, Ghanshyam, “Protective Discrimination, Equality and Political Will” in Vimal P. Shah and Binod C. Agarwal (eds.), op.cit., p. 3. 10. Galanter, Marc, Competing Equalities: Law and the Backward Classes in India, op.cit., p. 49. 11. Id, p. 52. 12. Manasa, “Karnataka and the Women’s Reservzation Bill”, Economic and Political Weekly, Vol. XXXV, Nos. 4334, Oct. 21- 27/Oct. 28-Nov. 3, 2000, p. 3851. 13. Srinivas, M.N., “The Pangs of Change”, Front Line, Vol. 14, No. 16, Aug. 9-22, 1997.

346

14. Sorabjee, Soli J., “The Official Position,” http://www.india- seminar.com/2001/508. 15. Ibid. 16. Government of India, The Tenth Five Year Plan (New Delhi: Planning Commission, 2002), p. 424. 17. Virginius, Xa Xa, “Protective Discrimination: Why Schedueld Tribes Lag Behind Scheduled Castes”, Economic and Political Weekly, Vol. XXXVI, No. 29, July 21-27, 2001, p. 2767. 18. Das, Bhagwan, “Untouchability, Scheduled Castes and the Nation- Building”, Social Action, July-Sept. 1982, p. 6. 19. Ambedkar, S.N. “Dalits Consciousness: Emerging Trends”, Ambedkar Journal of Social Development and Justice, Vol. 2, March 1992, p. 15. 20. N.R. Narayana Murthy, Chairman and Chief Mentor Infosys, 2005. 21. Arun Bharat Ram, Chairman, S.R.F. 2005. 22. Rajeev Chandrashekhar, Chief, B.P.L. Innovision, 2004. 23. N. Srinivasan, Director General Designate CII 2004. 24. Outlook, October 2005. 25. Sukhadeo Thorat. Reservation and Private Sector, Quest for Equal Opportunity and Growth, published in 2005, pp. 275-280, I.I.D.S., New Delhi. 26. Constitution of India, Article 15(4) and 16(4). 27. Supranote 6 at p. 283. 28. Id at p. 284. 29. Ibid. 30. Id at p. 285.

347 PART X

CHAPTER – I

EVALUATION OF JUDICIAL RESPONSE THROUGH LANDMARK JUDGMENTS OF SUPREME COURT AND HIGH COURTS DEVOTED ON RESERVATION POLICY

One of the important objectives stated in the Preamble of the Constitution is ‘social justice’. The Court is expected to interpret law in such a way that this avowed objectives could be made a reality. Justice V.R. Krishna Iyer emphasizes this aspect of Judicial Activism when he says:

A pragmatic approach to social justice compels us to interpret constitutional provisions liberally with a view to see that effective policing of the corridors of power is carried out by the court until other Ombudsman arrangements are made. Court’s function, of course, is limited to testing whether administrative action has been fair and free from the taint unreasonableness and has substantially complied with the procedural norms set for it by the rules of public administration and the action of the administration is not malafide.1

Reservation is mainly in the area of admissions in educational institutions.2 employment in government services3 and seats in the legislature.4 Regarding reservation of seats in the legislatures including union parliament, there is practically no dispute. Moreover this reservation in only for Scheduled Castes and Scheduled Tribes and originally this reservation was only for 15 years but it has been extended through

348 amendments to the Constitution. Other Backward Classes (OBC) do not enjoy any reservation of seats in the legislature. But in the sphere of education and government services OBCs do enjoy reservation. In some States like Kerala, OBCs have become a dominant force in the bureaucracy. Thus the transience of backwardness has given rise to clash of interests both at the political and legal levels.

In this chapter cases that came before the supreme court of India have been discussed and analyzed by the researcher to get a clear picture of the nature of judicial activism vis-à-vis social justice.

In State of Madras v. Champakam Dorairajan5, the Court was unwilling to uphold the validity of the Communal Government Order of Madras Government, for the impugned Order went against the principle of ‘equality before law’ enshrined in the Constitution. There were two similar cases of admission to the Medical College and to the Engineering College.6 According to Justice S.R. Das.

The Chapter of Fundamental Rights is sacrosanct and not liable to be abridged by a legislative or executive act or order except to the extent provided in the appropriate Article in Part III. The Directive Principles of State policy have to conform to and run as subsidiary to the chapter of fundamental rights. In our opinion that is the correct way in which the provisions found in Part III and IV, have to be understood… However so long as there is no infringement of any fundamental right to the extent conferred by provision in Part III there can be no objection to the state acting in accordance with the directive principles set out in part IV, but subject

349 again to the legislative and executive powers and limitations conferred on the state under different provision of the Constituion.7

The Court’s verdict was nullified by the legislative action, for the Parliament came with an amendment to the Constitution and introduce Clause 4 to Article 15. This amendment is described as ‘a crushing response to the challenge (the decision of the Court).8 This indeed marked a portentous trend of the beginning of a subtle conflict between Legislature and Judiciary.9 In CR Srinivasan v. state of Madras;10 the court rejected the caste as the only criterion for reservation. This judgment also reflected the spirit of ‘equality’ as envisaged in Article 14. In a similar vein Andhra High Court held11 that any provision that prohibits backward classes to compete with others was held to be violative of Article 15 and 29 (2)(b). It was also directed that a minimum percentage for reservation should be fixed.

In Kesava v. State of Mysore12 the issue involved was whether the decision of the State to identify backward classes was valid, as State Government had declared every community except Brahmin as Backward Community. The High Court held that State was doubtless the sole authority to classify the communities as ‘backward classes’.13

In M.R. Balaji and others v. State of Mysore and other14 the Court was trying to keep a just balance between the conflicting interests of those who would like to have as much reservation as possible and those might lose their chance even if they are the deserving ones. The issue in this case is about the admission to the Medical course. “According to the petitioners, but for the reservations made by the impugned order, they would have been entitled to the admission in the respective colleges for which they had

350 applied.” The impugned Order was issued on 31-07-1962 and it reserved seats for candidates belonging to the backward classes whose average of student population was the same or just below State average. This resulted in 68 percent of seats available for admissions to the Engineering and Medical Colleges and to the other technical institutions is reserved for backward classes, more backward classes, Scheduled Castes and Scheduled Tribes. The classification of the socially backward classes of citizens made by the State, proceeds on the consideration only of their castes without regard to other factors, which are undoubtedly relevant. It was argued that this might lead to a virtual reservation for nearly 90 per cent of the population, which might come under different categories of backwardness. This would be at the expense of those classes of people whose members may perform well but may not get an opportunity.

After analyzing facts and probing the legal nuances, the Court came to the conclusion that caste alone could not be the criterion for backwardness. The Court also observed that reservation should not go beyond 50 per cent. The Court said:

‘When it is said about an executive action that it is a fraud on the Constitution it does not necessarily mean that the action is actuated by malafides. An executive action which is patently and plainly outside the limits of Constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State’s authority. If on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert and latent, the said action is struck down as being fraud on the relevant constitutional power… We have already noticed that the impugned order in the present 351 case has categorized the Backward classes on the sole basis of caste which, in our opinion, is not permitted by Article 15 (4) and we have also held that the reservation of 68 per cent made by the impugned order is plainly inconsistent with the concept of special provision authorized by Article 15 (4). Therefore it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Article 15 (4).’

On the whole the apex court succeeded in giving a well-balanced judgment. Caste could not be the sole criterion for identifying social backwardness. But castes, poverty, occupation, place of habitation are some of the relevant factors for determining social backwardness. It is unconstitutional to classify backward classes into backward and the most backward. Above all the court observed that the upper limit for reservation could only be 50per cent. It is open to question whether by fixing the upper limit, Court was not interfering in matters of policy, encroaching thereby the domain of legislature. Moreover fixing a limit in such a question would become inappropriate when the socio-economic changes become more manifestly rapid. The Court changed its observations in accordance with the provisions in the first amendment to the Constitution namely, Article 15(4) is held to valid and not contradictory to Article 15(1).A reasonable extent of discrimination was to be permitted by law. But the honorable Court did not go into the essential social data regarding the proportional strength of the communities in the whole of the population, the educational progress made by each community and the standard of life enjoyed by them. The Court simply went on to pronounce the judgment based on the recent amendment to the Constitution and the philosophy behind the amendment. Perhaps the honorable Court took the stand that was politically correct at that time.

352 In Chtiralekha v. State of Mysore15 the Supreme Court gave some leeway to caste by saying that caste could be considered as one of the relevant factors in determining social and educational backwardness. But at the same time it was made clear that that terms ‘caste’ and ‘class’ are not synonymous. The Court observed:

We do not intend to lay down any inflexible rule for the Government to follow. The laying down of criteria for ascertainment of social and educational backwardness of a class is complex problem depending upon many circumstances, which may vary from state to state and even from place to place in a State. But what we intend to emphasize is that under no circumstance a ‘class’ can be equated to a ‘caste’ though the caste of an individual or a group of individuals may be considered along with other relevant factors in putting him in 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.

In P. Rajendran v. State of Madras16 the Supreme Court upheld the ratio in Hariharan Pillai’s case. The question was whether caste could be considered the sole criterion for determining socially and educationally backward class. The Court observed that if the caste as a whole was socially and educationally backward reservation could be made in favor of such caste within the meaning of Article 15 (4) The Court also struck down district- wise distribution of seats in the Medical Colleges on the basis of population in each district to that total population of the State. This could not be permitted under Article 14. But at the same time in Nishi Maghu v. State of J & K17 the classification of ‘social castes’ made with reference to the nature 353 of occupations and the classification based on areas adjoining actual line of control and ‘bad pockets in Jammu and Kashmir being really backward areas’ and residents of these areas being socially and educationally backward were valid.

In P. Sagar v. State of A.P.18 the High Court reiterated the stand that caste should not be the sole criterion for measuring backwardness. The questions was whether the list of backward classes based solely on caste was legal. The Court answered this question in the negative. It observed that the impugned order infringed Article15(1).In B. Sayeed Ahamad v. State of Mysore,19 the High Court felt that the occupation and income of the parent fell very much within the category of backwardness. The same Court ruled that family income could be the basis for deciding backwardness in Shetty v. State of Mysore.20

A Periya Karuppan v. State of Tamil Nadu21 was indeed a landmark case in respect of the issue of reservation. The candidates challenged the unit-wise selection of Medical Colleges including the reservation for backward classes. Another significant question was the determination of backwardness on the sole basis of caste. Hegde J. observed that ‘a caste has always been recognized as a class’. The learned Judge perhaps was not aware of the consequences of such observations. The pertinent question, here is, will it help abolish caste. The question whether 41% reservation for Scheduled Caste, Scheduled Tribes and Other Backward classes could be valid. The apex Court declared that the unit-wise reservation for SCs, STs and OBCs was vaiolative of Articles 14 and 15. But the classification of backward classes on the basis of caste was held to be within Article 15 (4). The Court also observed that 41% reservation was not excessive. 354 Commenting on this aspect of the judgment Anirudh Prasad (1991) writes. “Rajendran, Balaram and Periyakaruppan appear to present a ‘retreat’ from judicial efforts to search secular and rational criterion.”22

The Bombay High Court held that the proportion of population of backward classes, SCs and STs to the total population of the state being the basis for determining the quantum of reservation, valid and reasonable. The provision for the carry forward of vacant reserved seats of the one of the sub-groups of backward class to that of the other sub-group was held to be valid.23 The adoption of criteria of income and occupation for identifying backward classes was not against Article 15 (4) and 16 (4). Notification to this effect was held valid by the High Court in G.N. Guidigar v. State of Mysore.24

In Paravatnalini v. State of Orissa and Others25 it was held that reservation under Article 16(4) be read along with Article 355. Reservation under Article 16(4) was not binding on the state. It may be left to the discretion of subject to the satisfaction to the satisfaction of a minimum standard of suitability. How this discretion is exercised by the state depends on the political situation that warrants that the party in power uses the power of discretion in such a way as to satisfy the ‘vote bank’. This is one of the fallouts of the ‘majoritarian principle’ that governs the working of parliamentary democracy.

The Supreme Court favored the decision of the state to use caste as the basis for determining backwardness. It observed that if the entire caste was socially and educationally backward, caste could be taken as the basis

355 for identification of Backward Class and this is not violative of Article 15(4).

In Subash Chandra v. State of U.P.,26 the Allahabad High Court held that people of rural areas, hill area and Uttarakand division belong to socially and educationally backward classes under Article 15(4) but the same court in Dilip Kumar v. State of U.P.27 held that the number of candidates from reserved areas appearing in the Pre-medical test and also the shortage of Higher secondary schools in that area were not adequate reasons for classifying all the residents of that area as belonging to educationally backward.

In State of A.P v. U.S.V. Balram28 the Supreme Court heard three appeals together. The State of A.P. was the first appellant. The appeals were directed against the judgment of the High Court of Andhra Pradesh that struck down Rule 9 in the Rules relating to the selection of candidates for admission to the Government Medical Colleges. One aspect of the impugned Rules was about reservation of seats in the professional colleges, for Backward Classes. Incidentally the conclusions arrived at by the Backward Classes Commission of Andhra Pradesh was also challenged. Observation of the Supreme Court in this regard is significant. “In fact the Commission has categorically stated that information received from various schools showed that the percentage of education was slightly higher than the state average in respect of some small groups but in view of the fact that their living conditions were deplorably poor, the slightly higher percentage of literacy should not operate to their disadvantage.” Indirectly at least the Court has acknowledged the economic factor in backwardness. The Court in this regard has said: 356 No doubt our attention was drawn to a decision of the Kerala High Court, which has held that reservations is irrespective of some of the candidates belonging to the backward classes getting admission on their own merit. The Andhra Pradesh High Court has taken a slightly different view. If a situation arises wherein the candidates belonging to the groups included in the list of Backward Classes, are able to obtain more seats on the basis of their own merit, we can only state that it is the duty of the Government to review the question of further reservation of seats for such groups. This has to be emphasized because the Government should not act on the basis that once a class is considered as a Backward Class it should not continue to be backward for all time.

In Pradip Tandon v. State of U.P.29 the Supreme Court held that reservations in favor of rural areas were not justified under the reservations for socially and educationally backward class of citizens. In the present case the relevant Government Order that reserved seats for candidates from rural, hill and Uttarakhand areas. This was held unconstitutional.30 The Court by way of interpretation of Article 15(4) said:

The backwardness contemplated under Article 15(4) is both social and educational. Article 15(4) speaks of backwardness of classes of citizens. The accent is on classes of citizens. Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes. Therefore socially and educationally backward classes of citizens in Article 15(4) could not be equated with castes. In M.R. Balaji v. State of Mysore and State of A.P. v. Sagar this Court held that classification of backwardness on the basis of castes, would violate both Article 15(1) and 15(4).

357 In Kumari K.S. Jayasree v. State of Kerala31 the Supreme Court went into the merit of the State Government’s Order dated 2 May 1966, that those OBC candidates seeking admission to Medical Colleges and whose parent’ income is above Rs. 10,000 per annum would not come under reservation benefits. The Court said:

‘The problem of determining who are socially and educationally backward classes is undoubtedly not simple. Sociological and economic considerations come into play in evolving proper criteria for its determination. This is the function of the State. The Court’s jurisdiction is to decide whether the tests applied are valid. It appears that the tests applied are proper and valid the classification of socially and educationally backward classes based on the test will have to be consistent with the requirement of Article 15 (4).’

The Court in its judgment upheld the validity of the Kerala Government Order and thereby indirectly recognized the economic factor in deciding backwardness.

The question in Aari Gupta v. State of Punjab32 whether the Government could make relaxation in mark for the Scheduled Caste and Scheduled Tribe candidates. According to the first notification of the Punjab Government SC/ST candidates had to secure only 35 per cent of marks in the competitive exam to qualify for medical admission. Yet for 100 reserved seats only 32 qualified. The general candidates claimed those reserved seats. However the Government issued a notification reducing the minimum percentage to 25. This was challenged by the general candidates before the

358 High Court, which dismissed the petition. Hence they approached the Supreme Court.

The Supreme Court rejected the argument that the Medical Council of India prescribed 40% as the minimum and Universities could not reduce it further. But the Court did not accept the argument. Citing earlier decisions, the court observed that how the selection has to be made out of the eligible candidates is a matter, which depends upon circumstances prevailing in a particular state. In an earlier case M.P. v. Nivedita Jain.33 The State Government fully deleted the prescription of the percentage of marks in the selection examination. Through the case was worse than the present one the Court upheld the Government decision. Here too, therefore, the Court upheld the Order of the Government, which was in favour of reservation that could not be encroached upon by general candidates.

In state of Punjab v. Dayanand Medical College and Hospital34 it was held that though in a sense the Medical Council of India could also be a ‘State’ for certain purpose, such a body would not be suited to make the necessary reservation in respect of socially and educationally backward classes in terms of Art. 15(4) of the Constitution because of the need or the necessity for prescription, taking into account several considerations such as different levels of social, economic and educational development of the State or different regions in the State. Such considerations arise in the context of Article 16 as well. It is well known that the States often do appoint Backward Classes Commission to identify the socially and educationally backward classes of India, though in the context of fixing the standards and the extent of backward classes and the manner in which their backwardness have to be ameliorated. These vital aspects of policy necessitated equally by 359 great public and general importance can be properly appreciated by the Government, Central or State, rather than the Medical Count to which the difference in standards have to be maintained between the general category and the reserved category must be left to Medical Council of India. Thus, proper balance will have to be struck both by the Medical Council of India and by the Government, Central and State exercise of their respective powers. The Medical Council of India, a creature of a statute, cannot be ascribed with such powers to reduce the state Government to nothing on and in respect of areas over which the States have constitutional mandate and goal assigned to them to be performed.

In Rajesh Kumar Verma v. State of M.P.35 a Government Order relaxing the minimum mark requirement was the issue. Admission to Medical Courses was governed by Rules made by the State Government. The State Government provided reservation for Scheduled castes and Scheduled Tribe candidates. The Rule also provided that in case eligible candidates to the extent of reservation in any category are not available, the vacancies of the reserved category will be filled from the waiting list of candidates in general category. There was also relaxation of marks. For English minimum mark prescribed is 25%, but that will not be included in the aggregate. In the present case it so happened that out of 87 seats available to Scheduled Caste candidates only 40 students qualified for and mission and regarding Scheduled Tribes only 30 students qualified and the number of seats was 87. This resulted in the fact that out of 174 seats reserved 94 fell vacant. In the ordinary course these should have gone for general candidates. But the State Government in the meanwhile by an Order reduced the minimum qualifying marks in English to 15% for Scheduled

360 Caste candidates and 10% for Scheduled Tribe candidates. This Order was challenged through a Writ petition before the Division Bench of the High Court. The contention was that those unfilled seats should go to general candidates and Order was no justifiable. The High Court accepted the argument and ordered so. But in appeal the Supreme Court pointed out that in the absence of any law to the contrary it was open to the State Government to relax the rule prescribing the minimum qualifying marks to ensure the interests of these category of students was protected and they receive protection to the extent it was necessary for their upliftment.

In Ritesh R. Sah v. Dr. Y.L. Yamul.36 The Court observed that if a candidate belonging to the backward class got admission to a course on merit-in the instant case admission in the Medical College-it could not be considered to be admitted against reserved category. The ape Court instructed the Maharashtra Government that the ‘above said directions should be borne in mind and the rules should be made accordingly’.

In Dr. Sadhana Devi v. State of U.P.37 The Government of U.P. issued a circular dispensing with the requirement of minimum mark for the admission to Postgraduate course in Medicine for the Scheduled Castes and Scheduled Tribes candidates. The Supreme Court held:

The importance of merit being the only criterion for admission to post-graduate medical courses viz. MD, MS and the like was also emphasized in Dr. Pradeep Jain v. Union of India. (1984) 3 SCC 654: (AIR 1980 SC 1420).

But this line of inquiry need not detain us here in this case because the case of the petitioners is not that there should be no reservation for the

361 candidates belonging to the three special categories mentioned hereinabove at the post-graduate level. Their contention is that candidates belonging to the three special categories must be able to secure the minimum qualifying marks in the admission tests in order to gain admission to post-graduate medical courses. If they fail to secure even the minimum qualifying marks, then the seats reserved for them should not be allowed to go waste but should be made available to the candidates belonging to general category. This contention must he upheld. Otherwise, to borrow the language used in Dr. Jagdish Saran case (AIR 1980 SC 820), this will be a “national loss.”

Before we part with this case, we may refer to another judgment of this Court in Mohan Bir Singh Chawla v. Punjab University. Chandigarh, 1996 (9) SCALE 351, in which it was observed after a review of the case law “the higher you go, in any discipline, lesser should be the reservation-of whatever kind.”

In that view of the matter, this writ petition succeeds. This decision contained in the letter dated 31-8-1995 addressed by the Principal Secretary. Uttar Pradesh government to the Director General, Medical Education and Training, Uttar Pradesh directing that there shall be no minimum qualifying marks for Scheduled Castes/Scheduled Tribes/Other Backward Classes candidates in the written examination for admission to postgraduate and diploma courses is quashed. It is directed that if the seats reserved for SC/SC/OBC candidates cannot be filled up on account of failure of the candidates belonging to these categories to obtain the minimum qualifying marks, then such seats should be made available to the candidates belonging to the general category.

362 Admission to Medical Colleges again became an issue in Rajiv Mittal v. Maharshi Dayanand University.38 There were 49 seats in the open category and 11 seats for reserved category for M.B.B.S. at Rohtak Medical College. In the first counseling there were a few vacant seats in the general category and hence second and third counseling were held and candidate with serial number 60 was admitted. Sunil Yadav who belonged to the backward community came with the rank of 62 in the merit list. There was again one seat vacant in the general category. As candidates with 61, 62, 63, 64, and 65 did not join the general candidate with 66th rank was offered the seat.

Respondent No. 3 who belonged to the reserved category could not get admission in the Rohtak Medical College inasmuch as his merit position in the reserved category was at serial No. 12 while the number of seats in this category in that college was only 11 and all those seats has been filled. He thereupon filed a writ petition in the Punjab and Haryana High Court contending that Sunil Yadav should have been adjusted against the general category seat which had been allotted to the appellant herein in the second counseling held on 26-09-1966.

The High Court, allowed the writ petition filed by respondent No. 3 as it held that it was “settled principle of law that a candidate from the reserved class, if is entitled to get admission to a course of his own merit in the general list, he must be treated on his merit and not accommodated against the reserved vacancy”. It thereupon came to the conclusion that Sunil Yadav should have been adjusted against the one seat in the general category which had been offered to the appellant at the time of second counseling and that

363 the reserved seat, which would be so vacating by Sunil Yadav, should be offered and admission granted to respondent No.3.

But the Supreme Court did not agree with the finding of the High Court. The apex Court observed:

On behalf of the appellant, it has been contended that the High Court could not direct that Sunil Yadav should be considered as having been given the general category seat in the second counseling when he had already secured admission in the first counseling in the reserved category.

The Court, thus, set aside the judgment of the High Court, the result of which would be that writ petition filed before the High Court would stand dismissed.

In Dr. Preethi Srivastava v. State of M.P.39 the Supreme Court considered six petitions together. The issue was whether there could be provisions for reservation of seats in specialty and super specialty courses in Medicine. The state of U.P. fixed the cut off percentage of 20 per cent marks for reserved candidates as against 45 per cent for the general candidates. The State of M.P. fixed 20% for Scheduled Castes and 15% for Scheduled Tribes and 40% for other backward classes. According to the Court “The disparity of qualifying marks being 20 per cent for the reserved category and 45 per cent for general category is too great a disparity to sustain public interest at the level of post graduate medial training and education.”

In K.Duraisamy and another v. State of T.N. and others.40 The Government Order that provided 50 per cent quota for in-service and 50 per cent for non-services candidates for admission in the specialty and super specialty courses in Medicine was challenged. The Court held the Order

364 valid. According to the Court ‘quota’ and ‘reservation’ are different concepts. Therefore the matter does not come under Article 15(4).

A case came before the Supreme Court where a similar notification of the Punjab Government was challenged. In State of Punjab v. Dayanand Medical College and Hospital41 the impugned notification fixed the quota of 60 per cent for in-service candidates and 40 per cent for non-service. The Court held the notification valid. But the Court observed that with regard to marks in the tests the State could not make any relaxation.

But the apex Court would quash any unreasonable fixing of quota. This happened in the case of A.I.I.M.S. Student Union v. A.I.I.M.S.42 the rule regarding admission to Post-Graduate Course in AIIMS was based on the quota of Institutional reservation of 33 per cent coupled with 50 per cent reservation discipline-wise. This was held super reservation and hence it infringed the equality principle to Article 14.

In “Dr. Narayan Sharma v. Dr. Pankaj Kr. Lehkar43 the questions before the Court were, 1. Whether reserving seats in the Assam Medical College for the postgraduate course to candidates form North Eastern Council area. 2. Whether there could be reservation for the teachers in medicine for the postgraduate course. The Court held both these reservations were constitutionally valid. The impugned law in this case was Assam Medical Colleges (Regulation of Admission to Post-Graduate Course) Rules (1997).

In Ashok Thakur v. Union of India and others44 hailed as Mandal II, the Supreme Court’s constitution Bench has passed the way for social justice in higher education. In four separate judgements running to 369 pages, five

365 judges of the Supreme Court have attempted to answer about 25 questions on India’s pursuit of affirmative action in higher educational institutions. The Bench was disposing of certain public interest petitions challenging the constitutionality of 93rd Constitution Amendment Act, enacted in 2005 inserting Article 15(5) of the Constitution. The petitioners also challenged the validity of Central Educational Institutions (Reservation in Admission) Act, 2006, which provides reservation in admission to certain Central Government run educational institution for students belonging to SC, ST and other OBC categories.

Hearing the arguments from both the sides the Court pronounced this monumental judgement on 10th April, 2008 which provides for the following:

The 93rd Constitutional Amendment Act, inserting Article 15(5), does not violate the basic structure of the Constitution so far as it relates to aided educational institutions. As far as private unaided educational institutions are concerned, four out of five judges have left the question open in the absence of challenge by such institutions, while Dalveer Bhandari J. has held that it violates the basic structure.

The Central Educational Institution (Reservation in Admission) Act, 2006, is constitutionally valid subject to the exclusion of creamy layer.

The quantum of 27% reservation for OBC’s is not illegal.

The 2006 Act is not illegal merely because a time limit is not prescribed for reservation.

There should be a review of the lists of socially and educationally backward classes every five years. 366 In the judgement of Ashok Kumar Thakur45 case, the Supreme Court rightly excluded creamy layer from the list of other backward classes. It also vehemently negated the policy of reservation regarding promotions.

Employment

Probably, the first case where Constitutional provision for 'protective discrimination' for weaker sections, was tested on the touchstone of Fundamental Right of equality of treatment, is the one concerning 'equality of opportunity in employment'. This was B. Venkitaramana v. State of Madras46 where the aggrieved party namely a Brahmin candidate for the post of Munsif approached the Court for he was alleged to have been discriminated, against by the Public Service Commission. The Supreme Court held that this discrimination was illegal and unconstitutional. He suffered from this discriminatory treatment because of the rules of reservation envisaged in the Communal G.O. of the government of Madras. The Court observed:

‘For instance the petitioner may be far better qualified than a Muslim or a Christian or a non-Brahmin candidate and if all the posts reserved for those communities were open to him, he would be eligible for appointment, as is conceded by the learned Advocate-General of Madras, but, nevertheless he .cannot expect to get any of these posts reserved for those different categories only because he happens to be a Brahmin. His ineligibility for any of the post reserved for the other communities, although he may have far better qualifications than those possessed

367 by members falling within those categories, is brought about only because he is a Brahmin and does not belong to any of those categories. This ineligibility created by the Communal G.O. does not appear us to be sanctioned by cl. (4) of Article 16 and is an infringement of the fundamental right guaranteed to the petitioner as an individual citizen under Article 16 (1) and (2). The Communal G.O., in our opinion, is repugnant to the provisions of Article 16 and is as such void and illegal.’

Again the Court in this case directed the government to “consider and dispose of the petitioner's application for the post after taking it on file on its merits and without applying the rule of communal rotation."

The Supreme Court gave a favourable verdict in the case of reservation of selection posts in the railway service in Rangachari v. G.M Southern Railways.47 The Supreme Court held that the very term 'Backward Classes' included Scheduled castes and Scheduled Tribes. The Court interpreted Article 16(4) thus:

Article 16(4) clearly shows that the power conferred by it can be exercised in cases where the State is of the opinion that any backward class of citizens is not adequately represented in the service under it. In other words opinion formed by the State that the representation available to the backward class of citizens in any of the services is inadequate is a condition precedent for the exercise of the power conferred by Article 16(4) and so

368 the power to make reservation as contemplated by Article 16 (4) can be exercised only to make the inadequate representation in the services adequate. If that be so both "appointments" and "posts" to which the operative part of Article 16 (4) refers and in respect of which the power to make reservation has been conferred on the State must necessarily be appointments and posts in the services. It would be illogical and unreasonable to assume that for making the representation adequate in the services under the State a power should be given to the State to reserve posts outside the cadre of services. Again the Court went on to elaborate:

The condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context of the expression 'adequately represented imports considerations of "size" as well as "values", numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. Thus the Court arrived at the conclusion that;

... and if that be so, it would not be reasonable to hold 369 that the inadequacy of representation can and must be cured only by reserving proportionately higher percentage of appointments at the initial stage.

In T. Devadasan v. Union of India, where the Court invalidated the unreasonable 'carry forward rule' is another landmark judgement.

The central issue in Prem Prakash and others v. Union of India48 is the refusal of appointment to certain Scheduled Caste candidates because of lack of reserved vacancies. They had to be accommodated. In January 1980 the Delhi High Court held art examination for recruiting officers to the Delhi Judicial Service. It was stated that out of 16 vacancies 2 were reserved for Scheduled castes and 1 for Scheduled Tribes. In addition there were two carry forward vacancies for members of Scheduled Tribe. If Scheduled Caste candidates were not available they might be transferred as reserved vacancies for Scheduled Caste candidates. After the written examination and viva voce test only 11 candidates passed. Seven out of these 11 had competed for open seats while four had competed for seats reserved for the Scheduled Castes. In normal course vacancies, which are intended to be filled by holding an examination in any particular year are filled from amongst candidates who had appeared for that examination. But the matter was made complicated by the fact that two Scheduled Caste candidates who had passed the tests in 1979 and had not been appointed due mainly to the official error, were accommodated in 1980 vacancies as a result of the writ petition they had filed. But in doing justice to them (and delayed justice for that matter) justice was denied to the Scheduled Caste candidates who passed the tests in 1980. The apex Court observed:

370 The error from which the calculation of the High Court suffers is that the number of vacancies available for the Scheduled caste candidates was fixed according to the number of candidates who qualified for the general seats. The counter affidavit states expressly that the availability of vacancies for reserved category was determined on the basis that only seven candidates had qualified for the general seats. This according to us is neither justified by the Rules and administrative instructions nor indeed does such a method of fixation of reserved vacancies disclose any acceptable basis. 16 vacancies were advertised in the first instance out of which 11 were for general candidates and 5 for reserved candidates. Administration is not found to fill all the vacancies, which are advertised. But the availability of vacancies for the reserved categories cannot be made to depend upon the accidental circumstances of how many candidates have qualified for general seats. In the first place that would be contrary to the instructions ... Secondly such a method will lead to the absurd and undesirable consequence that no candidate of the reserved category will be appointed at all if only one or two candidates from general category qualify in the examination.

And the Court allowed the writs.

Again the one-post issue came up in Chakradhar Paswan v. State of Bihar49 and the Supreme Court has held that if there is only one post, it 371 could not be reserved because reservation under Article 16(4) does not permit the creation of monopoly of certain class on certain category of posts.

In this case, the State Govt. of Bihar directed that separate Directorate should be created each for Indigenous Medicines; the Director being from one of the systems of ,medicines namely Ayurvedic, Unani and Homeopathic. When separate Directorate was created the Government sanctioned the posts of two Deputy Directors for each of the two remaining systems. The State Government had in accordance with the decision of the Supreme Court prescribed a 50-point roster to implement the policy of reservation to posts and appointments for members of the backward classes under Art. 16(4). It was laid down that “if in any grade, there is only one vacancy for the first time, then it will be deemed to be unreserved and for the second time also, if there be only one vacancy, then it will be deemed to be reserved”. Acting upon the roster the Joint Secretary to the Government, General Administration Department (Personnel) made a proposal for reservation of the post of Deputy Director (Homeopathic) for members of the scheduled castes. He said that in the Directorate of Indigenous Medicines, three posts had been sanctioned - (1) Director of Indigenous Medicines' (2) Deputy Director (Homeopathic) and (3) Deputy Director (Unani). All these Posts were Class I posts. He suggested that according to the roster of appointments, out of these three posts the first, namely, that of Director be treated as unreserved, the second should be treated as reserved for scheduled caste candidate and the third should be unreserved. According to him, all the posts could be grouped together from the point of view of reservation.

The Supreme Court did not accept the arguments of the Bihar 372 Government. The Court observed that though the Directorate of Indigenous Medicines comprises of four posts, namely, that of the Director and three Deputy Directors, which were Class I posts, the posts of Deputy Directors would not constitute one “cadre”. They are members of the same Service but do not belong to the same cadre. According to the 50 point roster, if in a particular grade a single post falls vacant should, in the case of first vacancy, be considered as unreserved i.e. general and on the second occasion when It single post again falls vacant, the same must be treated as reserved. Admittedly, the post of the Director is the highest post in the Directorate of Indigenous Medicine with a higher pay scale while the posts of the Deputy Directors carried a lower pay scale. The posts of the Director and those of the Deputy Directors constitute different cadres of the Service, It is manifest that the Post of the Director of Indigenous Medicines, which is the highest post in the Directorate carried a higher grade or scale, could not possibly be equated with those of the Deputy Directors on a lower grade or scale. In view of this, according to the 50-point roster, if in a particular cadre, a single post falls vacant, it should, in the case of first vacancy, be considered as general. That being so, the State Government could not have directed reservation of the Post of Deputy Director (Homeopathic) which was the first vacancy in a particular cadre i.e. that of the Deputy Directors, for candidates belonging to the Scheduled Castes. Such reservation was not in conformity with the principles laid down in the 50-point roster and was impermissible under Art. 16(4) of the Constitution and clearly violative of the guarantee enshrined in Art.l6 (1), Clause (4) of Art. 16 is by way of an exception of the proviso to Art.16 (1). The reservation of the post of Deputy Director (Homeopathic) would amount to 100% reservation which was

373 impermissible under Art. 16(4) as otherwise it would render the guarantee of equal opportunity in the matter of public employment under Art. 16(1) wholly elusive and meaningless. If there is only one post in the cadre, there can be no reservation under Art.16 (4) of the Constitution. The whole concept of reservation for application of the 50-point roster is that there are more than one post, and the reservation as laid down by the Supreme Court can be up to 50 per cent. The three posts of Deputy Directors of Homeopathic, Unani and Ayurvedic are distinct and separate as they pertain to different disciplines and each one is an isolated post by itself carried in the same cadre. There can be no grouping of isolated posts even if they· are carried on the same scale.

In P. Rajendran v. State of Madras50 the Supreme Court uphold the ratio in Hariharan Pillai. The question was whether caste could be considered the sole criterion for determining socially and educationally backward classes. The Court observed that if the caste as a whole was socially and educationally backward reservation could be made in favor of such caste within the meaning of Article 15(4). The Court also struck down district-wise distribution of seats in the Medical Colleges on the basis of population in each district to the total population of the State. This could not be permitted under Article 14. But at the same time in Nishi Maghu v. State of J&K51 the classification of 'social castes' made with reference to the nature of occupations and the classification based on areas adjoining actual line of control and bad pockets in Jammu and Kashmir being really backward areas and residents of these areas being socially and educationally backward were valid.

Posts and Telegraphs Department undermined the policy of 374 reservation by introducing a common norm for reservation or its personnel. In 1983 an agreement was arrived at between the Ministry of Communications and certain associations of employees working in the Posts and Telegraphs Department. Consequently a fresh order relating to the policy of promotion to be adopted in the Posts and Telegraphs Department was issued in suppression of the scheme of reservation followed till then. Under the said new policy-irrespective of the fact whether an employee belonged to the general category or to the category of the Scheduled Caste and the Scheduled Tribes he would be able to get promotion to the higher cadre on the completion of 16-years. Thereby the comparative advantages which the members belonging to the Scheduled Castes and the Scheduled Tribes were enjoying were taken away and all the employees, namely, the employees belonging to the Scheduled Castes, the 'Scheduled Tribes and to the other categories were placed at par.

In P and T Scheduled caste/Tribe Employees Welfare Association (Regd.) v. Union of India52 the Court held that this order deprived the right of the Scheduled Caste/Scheduled Tribes for they had been enjoying the advantages of 'protective discrimination'. This also violated the equality clause of the Constitution. Persons belonging to the Scheduled Castes and the Scheduled Tribes in other Departments were enjoying similar advantage and only the employees of P. and T. Department had been deprived of it. The Court observed that it could not issue writ on this matter for Article 16 (4) was only an enabling provision. Justice Venkataramaiah pointed out the significance of Article 46 of the Constitution. It provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and

375 the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

In State of Karnataka v. K.B. Urushabendra Kumar53 the question is whether a person could claim appointment on the basis of the income of his adoptive family. In August 1987, applications were invited by the State of Karnataka for appointment of Sericulture Extension Officers. Two posts were shown reserved for members of the backward classes Group 'D'. Regarding one post there is no dispute. Regarding the other there arose dispute between respondents 1 and 2. It appears that these respondents on the basis that they were members of the backward classes of the kind applied for the post and rubbed shoulders before-the Karnataka Public Service Commission. The Commission rejected the candidature of respondent No. 1 on the basis that he did not fulfill the income criteria inasmuch as his natural family had income above Rs. 10,000/- per annum making him ineligible even though his adoptive family had income less than Rs. 10,000/- per annum. The adoption of respondent No. 1 as such was never disputed. The Commission on rejecting the candidature of respondent No. 1 in the backward class category treated him as a candidate in general category and did not show him in the order of merit for appointment in the later category. Consequently No. 2 was selected and recommended for appointment on that basis. The Government accordingly appointed him somewhere in the year 1989 and he has continued in the post thereafter. In the meanwhile Respondent No. I challenged the view of the Commission in rejecting his candidature before the Administrative Tribunal, Bangalore. The Tribunal took the view that since adoption was valid evidence as it was by a registered deed of the year 1979, there had been severance of relationship of

376 respondent No. 1 with his natural family and consequently he stood uprooted from that family and transplanted in his adoptive family whose income alone could be taken into account.

The Court observed:

When the factum of adoption and its legality remains unquestionable the law of the Hindus on the subject must necessarily have its consequences. Having gone to his new family, respondent No. 1 rightfully acquired their economic status. It is just a matter of fate that in his adopted fami1y he has comparatively been worse off but it could be the other way had his adoptive family been affluent. The view of the Tribunal in these circumstances appears to us reasonable requiring no interference at our end.

Thus the Court agreed with the Tribunal and thereby restored the claim of respondent No.1 in P.S. Ghalaut v. State of Haryana and others.54 The Court was concerned with the Constitution of India, Art.16 (4) vis-a-vis the Haryana Medical Education Service Rules (1965) regarding inter se seniority. Public Service Commission showed general candidate as more meritorious than reserved candidate. He shall be senior to reserved candidate but applying roster points made the appointment. Thus the reserved candidate steals seniority over general class candidate. The Supreme Court observed that this was not arbitrary.

In State of U.P. v. Dr. Dina Nath Shukla55 the question whether Faculty wise or Discipline wise reservation is ultra vires. The confusion was

377 mainly in the advertisement. The Court observed that if the subject wise is· adopted in each service or post in each cadre in each faculty, discipline, specialty or super-specialty, it not only be clear to the candidates who seek recruitment but also there would be no overlapping in application of the rule of reservation to the service or posts as specified and made applicable by the relevant Act ... If there is any single post of professor or Reader or Lecturer in each faculty, discipline, specialty or super-specialty, which can not be reserved for reserved candidates, it should be clubbed and roster applied and be made available to the reserved candidates in terms of the Section-3(5) of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act(1 of 1994) The Court said such an interpretation would sub serve and elongate Constitutional objective and public policy of socio-economic justice ... mandated and envisaged in Articles 335 and 16 (4) read with Articles 14and 16(1), Preamble, Article 38 and 46 of the Constitution and all other cognate provisions.

In. S.R. Murthy v State of Karnataka56 the question is promotion in single promotional post. In the Government Polytechnic in Karnataka though the appellant was the senior most person eligible for promotion, he was not promoted because in accordance with the roster point a Scheduled Caste candidate was to be appointed and thus a junior person got promoted, citing previous decisions the Supreme Court held that the application for the purpose, of promotion was not permissible.

In Ajit Singh v. State of Punjab57 the Court went into the question of seniority of reserved candidates and general candidates. The Court was not concerned with the reservation policy of the State' or with the validity of any procedure fixing roster points for purpose of promotion of reserved 378 candidates. The Court was dealing only with a limited question relating mainly to seniority of the reserved candidates promoted at roster points. According to the Court Articles 16 (4) and 16 (4A) open with a non- obstinate clause for it begins, "Nothing in this Article shall prevent the State from making any provision for reservation ... "and hence these Articles do not confer any fundamental right. Hence they do not impose any Constitutional duty and writ of mandamus could not be issued to provide for reservation or for relaxation

In State of Punjab v. G.S. Gill58 the respondent was appointed as Junior Technical assistant in the Department of Industries of the state of Punjab. The next promotional cadre was Assistant Superintendent Quality Marking Center (Textile). But this post was reserved for Scheduled Caste candidate. The respondent's contention was that the in the case of solitary post reservation would amount to 100 per cent reservation and hence it would be a violation of Articles 14 and 16(1). But the Court did not agree with this argument. When the respondent approached the High Court. it had agreed with the contention and said that in a single post cadre there could not be any reservation at all. Thus the government appealed before the Supreme Court. The Court pointed out that the reservation was made according to the rule that is in accordance with the roster. Focusing on similar cases the Court arrived at the conclusion that the decision of the High Court was wrong because 'reservation provided to single post on the basis of rule of rotation is not unconstitutional'.

The above decision was reiterated in Union of India v. Brij Lal Thakur.59 The post of E.C.G. Technician in the Grade became vacant on November 30, 1993 in the Central Hospital, Northern Railway due to 379 retirement of the incumbent. For promotion of Theater Assistants to the said post, trade test was conducted in which Smt. Prakash Kaur belonging to Scheduled Castes and two others were called. The vacancy to be filled up was reserved for Scheduled Castes in a Garry forward post as per the rotation of the roster. In the trade test Smt. Prakash Kaur was found suitable and she was accordingly promoted as E.C.G. Technician w.e.f. December 9, 1994. The respondent an unsuccessful candidate filed O.A. in the Tribunal contending that since the post of E.C.G. Technician is the solitary post, reservation as per roster is unconstitutional, as it would lead to 100% reservation. The contention found favour with the Tribunal. Accordingly, it set aside the appointment by promotion of Smt. Prakash Kaur and gave direction to treat it as unreserved post and to consider the case of the respondent for appointment to the post according to Rules. The controversy is no longer res integra. The Court in Union of India v. Madhav s/o Gajanan Chaubal60 by a Bench of three-Judges considered the entire case law following the Constitution Bench judgment in A. R. Choudhury v. Union of India,61 Commr. of Commercial Taxes v. D. Sethu Madhava Rao,62 Venkateswarlu v. Govt. of A.P63. and State of Bihar v. Bageshwarki Prasad.64 It was held that "even though there is a single post, if the Government have applied the rule of rotation and roster point to the vacancies that had arisen in the single point post and were sought to be filled up by the candidate belonging to the reserved categories at the point on which they were eligible to be considered, such a rule is not violative of Articles 14 and 16(1) of the Constitution". In that case the post of Secretary in the National Savings Scheme Service was a single point post to which 40 point roster was maintained to the vacancy in the said post. When the

380 Scheduled Tribes candidate was selected for promotion on the basis of the rule of rotation, it was held by the Tribunal that the promotion was violative of Articles 14 and 16(1) of the Constitution. Reversing that order it was held that:

Thus, the Government has adhered to the rule of rotation to a single post and the 40 point roster to the single post was applied and the vacancy reserved for the Scheduled Castes and Scheduled Tribes as and when had arisen, was sought to be filled up, when the candidates were available. Thus, we hold that the roster point No. 4 in the-vacancy of the Secretary reserved for the Scheduled Tribes was valid and constitutional. When the officer available and was eligible to be considered, he was entitled to he considered in accordance with the rules and be promoted as Secretary. The Tribunal, therefore, was not right in directing that the rule of rotation to the single post could not be applied. It is brought to our notice that the original promotee died pending the proceedings and, therefore, as and when vacancy arises as per rule of rotation as per roster the same would be filled up in accordance with law.

In Jatinder Pal Singh v. State of Punjab65 the single post reservation was again challenged. Reversing the decision of the High Court, the Supreme Court reiterated its earlier stand that a single post could be reserved.

381 The Supreme Court has categorically held in 'Mandal case' that a person, who belongs to a backward class and who becomes member of IAS, IPS or any other All, India Service, his children cannot avail the benefit of reservation. The States of Bihar and Uttar Pradesh have added further conditions such as salary of rupees ten thousand or more per men sum, the wife or husband to be graduate and one of them owning a house in an urban area. So far as the professionals are concerned, an income of, Rs, 10 lakhs per annum has been fixed as the criterion. It is further provided that the wife or husband is at least a graduate and the family owns immovable property of the value of at least rupees twenty lakhs. Similarly, the criteria regarding traders, industrialists, agriculturists and others is wholly arbitrary apart from being contrary to the guidelines laid down by Supreme Court in 'Mandal case'.

Multiple conditions have been provided in all the categories. With almost every category the conditions like the 'spouse' being a graduate and holding property in urban area, are attached. 'These conditions have no nexus with the object sought to be achieved. Since the conditions are not severable the two criteria as a whole have to be struck-down. Thus the criteria laid down by Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment)-Ordinance, 1995 and S. 3(b) of the U.P. Public Services Reservation of Scheduled Castes and Scheduled Tribes and Other Backward Classes Act, 1994, for identification of "creamy-layer", would be violative of Article 16(4), wholly arbitrary - violative of Article 14 and against the law laid down by Supreme Court in 'Mandal case'.

Thus the Division bench declared that the creamy layer formula of 382 both the states as invalid for being against the norms indicated by the Court in Mandal case.

Though the Government appointed a Commission to determine 'creamy layer', it went on to amend the Constitution so that reservation could be made available to the concerned communities in promotion also.66

Sometimes the executive makes rules in such a way that this sabotage the spirit of reservation. A case in point is Scheduled Castes and Scheduled Tribes Officers Welfare Council v. State of U.P.67 The issue was the validity of the memo prescribing norms for promotion in State Medical Health Department. It was alleged that Department relaxed the criteria only when general candidates were to be promoted. Separate list of candidates as per roster was not prepared. Moreover it increased the minimum length of services for promotion and the selection would be subject to efficiency test. The Court held that the impugned Memo was issued malafide to deprive SC/ST candidates of their chance of promotion. Hence the Memo was quashed.

The Supreme Court reiterated that the application of roster for single post cadre an appointment to carry forward rule is valid and constitutional with a view to give adequate representation in public service to the reserved category candidates, the opportunity given to them is not violative of Articles 14 and 16(1).

The questions involved in Chatter Singh v. State of Rajasthan68 whether it was legal that the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules (1962C), R.13 does not prescribe any minimum of lowest range of marks for

383 admission to main exam. It was argued that the object of R. 13 is only to eliminate unduly long list of candidates. Rule 13 provides that the Public Service Commission shall conduct competitive examination in two stages, namely, Preliminary Examination and Main Examination. As per the Scheme specified in Rule 7 and Schedule III, Preliminary Examinations are conducted on the subjects as per the syllabus and aggregate marks are taken into consideration to call the candidates for Main Examination. Marks obtained in the Preliminary Examination by a candidate would not be counted for the purpose of Main Examination to .determine the final order of merit. The Rule provides that if the candidates belonging to the Scheduled Caste/Scheduled Tribe could not reach the prescribed range of marks, there could be 5% cut off from the last range worked out for the general candidates and make the Scheduled Caste/Scheduled Tribe candidates qualified for the Main examination. The writ petition was to get this concession for the Other Backward Classes (OBCs). The argument was that the reservation applicable to the Scheduled Caste/Scheduled Tribe candidates should be made available to OBCs and the latter be treated on par with the former. The Court did not accept the argument. It held:

Though OBCs are socially and educationally not forward, they do not suffer the same social handicaps inflicted upon Schedu1ed Castes and Scheduled Tribes. Articles 15(2) and 17 furnish historical and social dissatisfaction inflicted on them. The object of reservation for the Scheduled Castes and Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the Backward

384 Classes is to remove their social and educational handicaps. Therefore, they are always treated dissimilar and they do not form an integrated class with Dalits and Tribes for the purpose of Article 16(4) or l5(4). Obviously, therefore, proviso to Rule 13 confines the 5% further cut-off marks in the Preliminary Examination from the lowest range fixed for general candidates. So, it is confined only to the Scheduled Castes and Scheduled Tribes who could not secure total aggregate marks on par with the general candidates. The Rule expressly confines the benefit of the proviso to Scheduled Castes and Scheduled Tribes. By process of interpretation, OBCs, cannot be declared alike the Scheduled Castes and Scheduled Tribes. Therefore, the contention, that the doctrine of fusing "any Backward Class of citizen" in Article 16(4), further classification of Scheduled Castes and Scheduled Tribunes and OBCs, as distinct classes for the purpose of reservation and omission to extent the same benefits to OBCs violates Articles 14 is devoid of substance.

In Superintending Engineer, Public health, U. T. Chandigarh v. Kuldeep Singh69, the Court held that the reserved posts between Scheduled Caste and Scheduled Tribes are interchangeable. It means that in a vacancy, which has been reserved for Scheduled Tribe, in accordance with the roster and the Scheduled Tribe candidate is not available, the claim of Scheduled Caste candidate could be considered.

385 In Suresh Chandra v. J.B. Agarwal it was held that In case of a solitary isolated post on the basis of rule of rotation, the benefits and. facilities should be extended to the reserved candidates, namely, Scheduled Castes and Scheduled Tribes.

In P.G. Institute of Medical Education and Research etc., v. K.L. Narasimhan70 the Supreme Court held that reservation to single post, applying the rule of roster, was constitutionally valid. To another question whether Court could give direction to throw open the reserved vacancies to the general candidates by a writ of mandamus, the Court expressed its inability to do so. The Court has observed that it cannot give mandamus to disobey the Constitution and the principle of reservation enshrined in Article 15(4) and 16(4). The Court is not competent to direct authorities to disobey the constitutional mandate. It would be manifestly illegal to seek a mandamus or a direction and the Court would not be justified to issue such mandamus or direction to the appropriate Government to dereserve the vacancy.

The Supreme Court has observed that the fusion of posts are constitutional arid permissible and also that the rules of rotation and roster are to be applied. The advertisements are required to be issued so that the reserved and the general category candidates would apply for the consideration of their claims for recruitment in accordance therewith and sub serve the socio-economic justice as envisaged in and mandated by Article 14 and 16(1) 16(4), 38, 46, 335, Preamble and other cognate provisions.

In P.G. Institute of Medical Education and Research Chandigarh, v. Faculty Association71 Reversing many previous decisions the Supreme Court

386 declared that a single post could not be reserved. The Court observed:

We ... approve the view taken in Chakradhar's case that there cannot be any reservation in a single post cadre and we do trot approve the reasoning in Madhav's case (1997 AIR SCW 3113); Brij Lal Thakur's case and Bageswari Prasad's case (1995 Supp (1) SCC 432) upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Postgraduate Institute of Medical Education and Research cannot also be sustained. The Review Petition made in Civil Appeal No. 3175 of 1997 in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh, is therefore, allowed and the judgment dated May 2, 1997 passed in Civil Appeal No: 3 175 of 1997 is set aside.

In State of Bihar v. Bal Mukund Sah72 the Supreme Court held that, appropriate Legislature or Governor can regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State concerned. Proviso to that Article permits the Governor of the State to fill up the gap, if there is no such statutory provision governing the aforesaid topics. For that purpose, the Governor may make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the competent legislature, which may intervene and enact appropriate statutory provisions for the same. Independently of general provisions of Article 309, the Constitution has 387 made special provisions for certain Services. Even if they may be part of public services, still separate Constitutional schemes are envisaged for regulating recruitment and conditions of services of officers governed by such Services. Chapter VI of Part VI deals with the subordinate Courts. It is in Chapter VI dealing with the Subordinate Courts provision is made for appointment of District Judges under Article 233, recruitment of persons other than the District Judges to the Judicial Services under Article 234 and also Control of the High Court over the Subordinate Courts as laid down by Article 235. Article 236 deals with the topic of 'Interpretation' and amongst others, defines by sub-Article (b) the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. It becomes, therefore, obvious that the framers of the Constitution separately dealt with ‘Judicial Service’ of the State and made exclusive provisions regarding recruitment to the posts of District Judges and other civil judicial posts inferior to the posts of the District Judge. Thus these provisions found entirely in a different part of the Constitution stand on their own and quite independent of Part XIV dealing with Services in general under the 'State'. Therefore, Article 309, which, on its express terms, is made subject to other provisions of the Constitution, does get circumscribed to the extent to which from its general field of operation is carved out a separate and exclusive field for operation by the relevant provisions of Articles dealing with Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution. The Court further observed that a particular category of post forming the judicial wings has been carved out in Chapter VI in Articles 233 to 235 so far as the question of recruitment is concerned. When Article 309 itself uses the

388 expression "subject to the provisions of this Constitution" it necessarily means that if in the Constitution there is any other provision specifically dealing with the topics mentioned in said Article 309, then Article 309 will be subject to those provisions of the Constitution. Thus the judicial services of the State is concerned Articles 233 to 237, would override any law made by the appropriate legislature in exercise of power under Article 309 of the Constitution. Appointment to the judicial service is carved out in the Constitution itself.

The Court further stated that Article 16 sub-Article (4) of the Constitution enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens, which, in its. opinion, is not adequately represented in the services under the State. This provision has to be read with Article 335 which deals with claims of Scheduled Castes and Scheduled Tribes to services and posts and lays down that "the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

The Governor (that is State Government) can make no recruitment to the post of a District Judge without recommendation from the High Court. Similarly, appointments to Subordinate Judiciary also cannot be made by the Governor save and except according to the rules framed by him in consultation with the High Court and the Public Service Commission. Any statutory provision bypassing consultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar Legislature has got to be held to be in direct conflict with the complete 389 Code regarding recruitment and appointment to the posts of District Judiciary and Subordinate Judiciary as permitted and envisaged by Articles.233 and 234 of the Constitution. Section 4 of the impugned Act shall not apply for regulating the recruitment and appointments to the cadre of District Judges as well as to the cadre of Judiciary subordinate to the District Judges and such appointments will be strictly governed by the Bihar Superior Judicial Service Rules, 1951 as well as by the Bihar Judicial Service (Recruitment) Rules. The plain and grammatical meaning of the words used in Section 4 reveals that the State Legislature in the garb of making law in consonance with Article 16(4) encroaches upon Article 234: The argument that reservation is intended to fulfill the Right of Equality under Article 16(1) read with 16(4) and the question whether there has been adequate representation of a particular backward class of citizens has been left to the satisfaction of the State Government in Article 16(4) and, therefore, the State Legislature cannot be denuded of its right to make such law to fulfill the aforesaid Constitutional mandate proceeds on a premises that the Governor, when frames rules in consultation with the High Court and the Public Service Commission under Article 234 will not take into consideration the constitutional mandate under Article 16(1) or Article 16(4). The premises on which the argument is based, is wrong. It is indeed painful to notice, sometimes law makers unnecessarily feel that the High Court or the Judges constituting the High Court are totally oblivious to the Constitutional mandate underlying Article 16 and more particularly, Article 16(4). This indeed is a significant verdict for the policy of reservation at least in Judicial Service is subject to the 'consultation' with the Judiciary.

390 The cases pertaining to protective discrimination or reservation that came up before the Supreme Court reveal following trends.

1. There is an increase in the number of reservational cases, but in the seventies there wasn’t any apparent increase. This might be due to tense political situation prevailed in the country culminating in the proclamation of internal emergency in 1975.

2. The nineties show the highest number of cases. This might be due to the increasing awareness of the backward communities about their constitutional rights. This was made possible especially by the impact of Central Government’s decision to implement the recommendation of the Mandal Commission Report.

3. Regarding the nature of issues involved in the cases it can be surmised that the questions of employment and education. It seems that one (especially one that belongs to any of the depressed classes) believes that a post in the government service would bring one out of social backwardness and financial insecurity. Moreover the post in the government service offers social dignity and sense of sharing power.

4. Cases regarding ‘education’ also show that most of them are concerned with the admission to Medical Colleges or such other institutions. No cases has come before the Supreme Court regarding the basic necessity of providing educational facility for the depressed classes. The logical conclusion ought to be that ‘elite groups’ among the depressed classes are trying to assert their ‘rights’ obtained through the membership of a class or caste, but at the same time these groups are not moved by the poor condition in which their own

391 brethren live.

Evolution of reservation jurisprudence has been described as ‘Judicial Gerrymandering’ The principle of equality, caste-class confusion, reconceptualization of Article 16, increasing the quota of the reserved seats, reservation in promotions and the principle of ‘carry forward’ are some of the major issues upon which the Court is called upon to decide.

Summarizing the evolution of judicial observations, it is clear that: “The courts have largely followed the lead of the legislature and the executive and when they did intervene occasionally it was mainly to regulate and modify, rather than to innovate or redirect policies. Except during a brief period….the role of the Supreme Court in advancing preferential policies had been modest. But some judgments, notably Indra Sawhney, may be heralding of enhanced judicial action in the years to come. What enhanced judicial action is in store for the future cannot be predicted. But the issue of reservation has been highly politicized and consequently a judicial settlement of emerging issues will also be wrought with political paradigms.

392 REFERENCES

1. A.I.R. 1951 SC 226. 2. AIR 1962 SC 36 This case can also be cited under ‘promotions’. 3. AIR 1984 SC 1831. 4. AIR 1988 SC 925. 5. AIR 1968 SC 1012. 6. AIR 1980 SC 1975. 7. AIR 1989 SC 1528. 8. AIR 1994 SC 1528. 9. AIR 1996 SC 361. 10. AIR 1997 SC 1095. 11. AIR 2009 SC 450 One of the issues in this case was that of promotion. 12. AIR 1999 SC 3471. 13. (1997) 6 SCC 129. 14. AIR 1997 SC 2101. 15. 1996 (9) JT (SC) 320. 16. (1974) 1 SCC 87, AIR 1974 SC 532. 17. (1996) 7 SCC 512, 1996 AIR SCW 2248. 18. (1996) 5 SCC 167. 19. (1995) Supp (1) SCC 432. 20. AIR 2000 SC 609. 21. By seventy-seventh Amendment (1995) Article 16(4A) was introduced and Eighty-fifth Amendment (2000) added the phrase ‘in matters of promotion, with consequential seniority’.

393

22. AIR 1997 SC 1451. 23. AIR 1997 SC 303. 24. AIR 1997 SC 2133. 25. AIR 1997 SC 3687. 26. AIR 1998 SC 1767. 27. AIR 2000 SC 1296. 28. AIR 1973 All 295. 29. AIR 1973 All 592. 30. AIR 1972 SC 1375. 31. AIR 1975 SC 1. 32. Backwardness in law perhaps is different from backwardness in economic development and educational attainments. Thus a political solution was found when a new State was carved out of U.P. namely Uttaranchal, now it is Uttarakhand. 33. AIR 1972 SC 2381. 34. AIR 1988 SC 481. 35. AIR 1981 SC 2945. 36. AIR 2001 SC 3006. 37. AIR 1995 SC 1421. 38. AIR 1996 SC 1378. 39. AIR 1997 SC 1120. 40. AIR 1998 SC 680. 41. AIR 1999 SC 2894. 42. AIR 2001 SC 717. 43. AIR 2001 SC 3006.

394

44. Judgement dated: 29.03.2007 Case: Civil No: Writ Petition (Civil)

265 of 2006.

45. (2008) 6 SCC 1. 46. AIR 2001 SC 3262. 47. AIR 2000 SC 72. 48. AIR 1951 SC 226. 49. AIR 1962 SC 36 This case can also be cited under ‘promotions’. 50. AIR 1984 SC 1831. 51. AIR 1988 SC 925. 52. AIR 1968 SC 1012. 53. AIR 1980 SC 1975. 54. AIR 1989 SC 139. 55. AIR 1994 SC 1528. 56. AIR 1996 SC 351. 57. AIR 1997 SC 1095. 58. AIR 2000 SC 450 One of the issues in this case was that of promotion. 59. AIR 1999 SC 3471. 60. (1997) 6 SCC 129. 61. AIR 1997 SC 2101. 62. 1996 (9) JT (SC) 320. 63. (1974) 1 SCC 87, AIR 1974 SC 532. 64. (1996) 7 SCC 512, 1996 AIR SCW 2248. 65. (1996) 5 SCC 167. 66. (1995) Supp (1) SCC 432. 67. AIR 2009 SC 609. 395

68. By seventy-seventh Amendment (1995) Article 16 (4A) was introduced and Eighty-fifth Amendment (2000) added the phrase ‘in matters of promotion, with consequential seniority’. 69. AIR 1997 SC 1451. 70. AIR 1997 SC 303. 71. AIR 1997 SC 2133. 72. AIR 1997 SC 3687.

396 CONCLUDING REMARKS AND SUGGESTIONS

397 may be filled by in any succeeding year or years without clubbing with the vacancies of the year in which they are being filled up.

With a view to fulfilling the constitutional obligations towards development, a number of development programmes have been designed and implemented by the government. All these are oriented towards

398 providing social justice and empowerment to hitherto deprived and marginalized sections of the society viz. SCs, STs and OBCs The responsibility of implementing the schemes of reservation is shared by the Central and State governments. The Central Government is responsible for formulating the related policies and programmes besides coordinating and promoting implementation by the States. In order to ensure equal social status to the SCs, STs and OBCs, the Union and the States' Governments have implemented the recommendations of various Commissions and Committees appointed for faming of reservation policies.

399 made for educating the weaker sections, namely, the SCs, STs and other backward groups of people. As a result, there has been rapid expansion of higher education system in terms of enrolment, number of institutions and growth rate, etc. since independence. After formulation of New Education Policy in 1986, the system has undergone a rapid and unique transformation from an elitist to an egalitarian one. All sections of the population have gained the benefit of such enlarged system. However, disparity between disadvantaged groups viz. SCs, STs and OBCs and non-disadvantaged groups still continues. Even after the framing of NEP, majority of SC, ST and OBC students have limited opportunity of good education. The reasons are not far off to seek. For one thing, the importance of providing them a good education is not realized by their parents as they do not have the tradition of education in their families. Secondly, extent and level of social interaction between them and their fellow students, and teachers is still largely governed by the traditional ethos of the society. Under such circumstances, very few students of these communities become able to upgrade themselves from lower to higher, especially college and University levels of education. Some times, they get enrolled at inferior educational institutions because of their weak socio-economic status, low aptitude for higher education, etc.

400 primary level, might be their economic backwardness and lack of awareness towards the importance of education.

However, The Kothari Commission observed in its report that:

“One of the important social objectives of education is to equalize opportunities enabling the backward and underprivileged classes and individuals to use education as a lever for the improvement of their conditions. Every society that values social justice and is anxious to improve the lot of talent must ensure equality of opportunity to all sections of society.”

The National Policy of Education also declares that 'the new policy will lay special emphasis on the removal of disparities and to equalize educational opportunity by attending to the specific needs of those who have been denied equality so far’ Thus, the policy statement seeks to remove inequalities based on gender, race, caste, religion, etc. along with improvement of equality. It was presumed that by providing a good education the socio-economic conditions of backward castes and communities could be improved and the process of change could be accelerated. As a result, since the inception of the policy, efforts have been made to provide a variety of inputs for preparing hitherto deprived sections to come forward and receive the benefits of education. The inputs provided are in the form of reservation of seats for admission into academic institutions, relaxation in upper age limit and in merit for admission in higher classes, exemption from fees, free boarding and lodging and some financial assistance like, scholarship, stipend, etc. to meet other exigencies. The policy has still been in operation even after six decades. However, the benefits of different welfare programmes have yet to percolate to most backwards amongst SCs, STs and OBCs. This

401 may be due to lack of awareness among backwards and economic compulsions of the government.

The input providing opportunity of study abroad to backwards is being utilized to its maximum. Students of these communities have been granted scholarship by the government. Hundreds of students from backward communities could be found in foreign countries with various scholarships and other schemes that help them in pursuing their studies abroad without taxing their families. The U.G.C. is also making effort for allowing or facilitating the backward class students to acquire .the requisite higher qualifications of M.Phil. and Ph.D. essential for teaching in the Universities and Colleges. Scholarships and fellowships are being provided to them to pursue these long and costly studies. The policy of preferential treatment has been adopted even in U.G.C's. NET/JRF examinations by reducing minimum qualifying marks at post-graduate level for appearing in NET test from 55% to 50% for SC/ST candidates. The Government and the Ministry of Social Justice and Empowerment is helping the poor SC and ST students wanting to go for such essential higher studies.

The representation of the SC/ST and OBC students in academic institutions and centres of higher learning is going up. Students of such communities aspiring for higher studies have been given due share even after obtaining less than minimum prescribed marks in competitive examinations. SC/ST cells have also been established in Universities for proper implementation of reservation policy. Apart from this, a standing Committee has been set-up to review the reservation policy.

The device of protective discrimination or reservation has been evolved with a view to ameliorating social and economic conditions of

402 'hitherto deprived and to pull them up to the same footing of equality so that they could be able to compete with the rest of population. There was no hue and cry from other sections on the issue of reservation in the initial phase of its inception in the Constitution. The reason is not far of to seek. For, the number of employees from reserved categories was small and hence, they were not in a position to pose any kind of threat to upper castes. The Government was also not enthusiastic in implementing the reservation. At least this was the perception amongst the SCs and STs. This may have been one of the factors responsible for loss of absolute majority by the ruling party in 1967 General Elections. Consequently, a high powered Committee was constituted to review the reservation policy and its impact in initial appointments in the government services. After reviewing the policy, number of far-reaching decisions had been taken by the Union Government to safeguard the interest of Scheduled Castes and Scheduled Tribes in various field of employment under the State. The positive impact of these decisions could be seen during the period of 1980’s. The proportion of holding of class-I posts by the SCs/STs increased from 1.8% and 0.16% in 1959 to 4.75% and 0.94% respectively in 1979. The impact was not only in the increase in percentage of representation but, incremental growth of their representation also rose up.

The major objective for providing the reservation in civil posts and services is not just to give jobs to hitherto deprived and thereby increase their representation in the services but to uplift them socially and educationally so that they could be able to get ahead in the society. In view of this end, vacancy-based rosters prescribed earlier have been replaced by post-based rosters by an order dated 2nd July, 1997, consequent upon the judgement of the Apex Court in R.K. Sabharwal’s

403 case. The Government has also provided some relaxation and concession to the beneficiaries to facilitate their adequate representation in the services. Liaison of officers have also been appointed for SCs, STs and OBCs in each department under different Ministries for implementing reservation orders properly. In order to continue reservation in promotions for SCs/STs, the Constitution was amended in 1995. Consequent upon effective formulation and implementation of the reservation policy, there is rapid increase in the percentage of representation of beneficiaries in the services under the State. By and large, they have now become able to fill the posts earmarked for them at the lower levels. The scheme of reservation is being followed by the public sector undertakings including financial institutions. State Governments have also framed rules for employment of hitherto deprived in their respective departments as per policy laid down by the Central Government. Such efforts have been found fruitful within last two decades for increasing representation in the services under the State. Their presence could be felt in the field of education and employment, etc. There are a number of secretaries belonging to the SCs, STs and OBCs working under the Government of India and State governments as well. There were about ten secretaries, half a dozen additional secretaries and more than a dozen joint secretaries in central secretariat belonging to the SCs and STs. Even, one of the members of Scheduled Tribes was twice nominated as a member in Planning Commission during the period of 1991 to 1996. A number of SCs, STs and OBCs are working as lawyers and judges in the judiciary also. However, their representation in higher levels of the judiciary is comparatively less. In fifty years, there have been only three Judges in the Supreme Court from these classes at different point of time. The debate is going on to make reservation in the

404 appointment of judges in the High Courts and the Supreme Court also. Further, debate is also going on for reservation in private sectors. Some of the States have already approved the policy in private sector services and government contracts respectively.

The present situation shows a significant improvement in socio- economic status of the people of reserved categories. Continuous efforts are being made to safeguard their interests. By and large, State's action has exalted the conditions of beneficiaries. Besides, industrialization and urbanization acted as a major catalyst for their socio-economic improvement as it not only opened up a space for geographical mobility but for social mobility in view of the scope for interaction and reference points that it provided these categories.

However, despite an appreciable increase in the intake of candidates from reserved category particularly SCs and STs in all categories of posts, they suffer from high unemployment. In 2000, the unemployment rates for SCs were 5 per cent compared to 3.5 per cent of non-SC/ST groups. Echoing the problem of non-fulfillment of prescribed quota, the Committee of the Parliament in its 18th Report observed that orders in respect of job reservations have not been implemented in letter and spirit and therefore, recommended framing of mandatory rules to ensure proper implementation of the reservation policy.

“The commission feels that economic equality is an important consideration, but not enough unless the weaker sections are at par

405 socially as well, and are free from all manner of social exploitation. Such a stage had not been reached by any standards whatsoever, the Commission would suggest the Government to devise measures to give priority in reservations to the weaker among the weaker sections of Scheduled Caste/Scheduled Tribe and simultaneously call upon the economically and socially better off among the Scheduled Caste/Scheduled Tribe to voluntarily abstain from claiming benefits such a policy would be continued till the appropriate time.”

406 faithful implementation of the creamy layer doctrine.

In a democratic politics, the numerical strength that the groups or categories enjoy is, no doubt, of strategic importance both at the national and regional levels. The numerical strength that the SCs enjoy over the STs gives them an advantage over the latter in the national politics. This is better reflected in their share in the national politics as 15% seats were reserved for the SCs in Parliament whereas only 7.5% of seats were given to the Scheduled Tribes, which is in operation till now. In state legislatures, the percentage of seats embarked for them varies according to the size of their population in the concerned state.

In 1999, the share of the SCs and STs in the Parliament was 79 (14.5 per cent) and 41 (7.5 per cent) respectively. The corresponding figure for the legislative assemblies was 562 (13.8 per cent) for the SCs and 539 (13.2 per cent) for the STs. The higher share of STs in the assemblies is due to certain tribal states mainly in north-eastern region. Criteria for political appointments/elections within the Parliament/

407 Legislatures or in the government such as council of ministers or membership on the standing committees, even an office within the political parties may be considered of critical significance in this context. And yet, the share of these two categories in respect of the above may greatly depend on the nature of their participation and mobilization process. It is true that the SCs and STs do not constitute a homogeneous and cohesive social group in the Parliament or in the State Legislatures. They are fragmented along lines of political party and linguistic as well as regional considerations.

The Scheduled Castes and-other backward castes have invariably had better representation in the government in the form of holding ministerial portfolios or other positions like Governors through the years. Further, whereas the SCs can boast of having produced leaders and administrators such as B.R. Ambedkar and Jagjivan Ram in the past and K.R. Narayanan, Buta Singh, Paswan, Suraj Bhan, Mahabir Prasad, Kanshi Ram and Mayawati in more recent times, there was lack of tribal leaders of such stature. This has resulted into such situation that the tribes have not been able to carve out a space akin to that of the Scheduled Castes in national politics.

Though, the provision of reservation for SCs and STs in the Parliament and the state legislatures was initially meant for a period of ten years but, ever since then it has been extended time and again. Due to electoral considerations, no political party finds itself in a position to oppose caste-based reservations and therefore, committed themselves to the continuance of the reservation policy till the achievement of desired goal. Every political party of the day has thus expressed its concern and sympathy towards the SCs, STs and OBCs because of their potential in the battle for ballots.

408 However, whatever be the social and political reason behind perpetuating the reservation policy, the political reservation has no doubt, helped greatly in making the voice of the oppressed heard in Parliament and the States Assemblies. A similar situation prevails in the local bodies also.

The Government of India has introduced extensive welfare programmes for socio-economic and educational upliftment of downtrodden. Consequent upon administrative as well as legislative efforts, state level Scheduled Castes corporations have been established for financial assistance to the Scheduled Castes living below the poverty line. With a token provision of Rs. Five crores, a Special Central Assistance Scheme was introduced in 1979-80 for alleviation of poverty among SCs. Such assistance, required to be disbursed by the States to various sectors and agencies involved in economic development programmes for SCs, has been increased to Rs. 500 crore in 2002-03 for benefiting 10 lac families:

Pre-metric scholarship scheme for educational development was introduced in 1977 for the children of those persons who were engaged in so-called unclean occupations, viz. scavenging of dry latrines, tanning, flaying, sweeping with traditional links with scavenging irrespective of their caste and religion. Under the scheme, different amounts of scholarship are provided to day-scholars and hostellers. An adhoc grant of Rs. 500 per annum is also provided to the beneficiary, but that only two children of the same parents would be eligible is a condition precedent for getting this benefit. A central assistance of Rs. 5.12 crore was released in 2002-03. The Scheme of post-metric scholarship was introduced in 1994 to provide financial assistance to the students of SCs and STs pursuing recognized post-matriculation courses. An amount of Rs. 204.63 crore

409 was released in this regard for an anticipated coverage of 23.30 lac students. Similarly, the Book Bank Scheme has been launched to help the deserving students of SCs and STs pursuing medical and engineering degree courses. However, this scheme is proposed to be merged with post-metric scholarship.

National overseas scholarship and passage grant for higher education have also been introduced by the government to provide financial assistance to meritorious selected students for pursuing higher studies abroad in post-graduate, doctoral and post-doctoral studies in specific field of medical, engineering, technology and science only. However, not more than one child of the same parents is eligible to get the benefit.

Despite, a National Commission for the Scheduled Castes and Tribes was constituted in 1992 through an amendment of the Constitution to investigate and monitor all matters relating to their welfare and safeguards. It is the duty of the Commission to participate and advice on the planning process of the socio-economic development of the SCs/STs and also to evaluate the progress of their development. The Commission is also required to present its report annually to the President suggesting measures for effective implementation of safeguards provided to the SCs/STs and also other measures for their protection, welfare and socio- economic development.

The Government had constituted four Parliamentary Committees, to examine the implementation of the constitutional safeguards provided for welfare of SCs and STs, in 1966, 1971, 1993 and in 2004 respectively. Besides, a Committee has since been constituted as a Standing Committee of Parliament on Labour and Welfare. States and Union Territories have

410 separate departments for the welfare of SCs, STs and OBCs. Administrative set-up, however, varies from state to state. The Government also provides grants-in-aid to voluntary organizations of local character working among SCs and STs. During 2002-03, 399 and 392 voluntary organizations were given grant-in-aid to the tune of Rs. 24 and 30.38 crores respectively.

Inspite of these progressive efforts, Scheduled Tribes are lagging far behind in comparison to the SCs and OBCs. This anomaly could be seen in their literacy rates and meagre representation in the services as well.

Therefore, in order to ameliorate their condition and to accelerate the process of development, a separate ministry-Ministry of Tribal Affairs-was constituted in 1999. It is a nodal ministry for overall policy, planning and coordination of programmes and schemes for the development of Scheduled Tribes. During the Fifth Five Year Plan the Tribal Sub-Plan Strategy was initiated for their development. The said plan laid down two objectives:

(i) protection of interests of tribals through legal and administrative support and

(ii) protection of development efforts through plan schemes to raise their level of living."

Special Central Assistance has also been provided to the States and Union Territories for their efforts in tribal development. This assistance is meant for family oriented income-generating schemes in various sectors. An amount of Rs. 500 crore was released for aforesaid purpose during 2002-03 to the States and Union Territories. A Central Sector scheme has been launched for over all development of various tribal groups-Primitive

411 Tribal Groups-living with pre-agricultural level of technology and low level of literacy. Under this scheme, financial assistance is made available to various organizations involved in welfare projects and activities not covered by any of the existing schemes. Fifteen Tribal Research Institutes have been set-up by the State Governments and Union Territories for planning inputs. Apart from these welfare schemes, girls/boys hostels for Scheduled Tribes, Ashram schools, vocational training centres in tribal areas, education of ST girls in low literacy pockets, grant-in-aid for minor forest produce operations village grain bank scheme and tribal cooperative marketing development federation have also been established by the Government of India for upliftment of tribal people. Besides, a separate 'National Commission' for Scheduled Tribes alone has been constituted through Eighty-ninth Constitution Amendment Act, 2003 to safeguard their interests and to monitor and accelerate the process of their socioeconomic development.

Consequent upon the implementation of the recommendations of Mandal Commission, the government, as per directives of the Supreme Court in Mandal case to set-up a permanent body for entertaining, examining and recommending upon the request for inclusion and complaints of over-inclusion and under-inclusion in the list of Other Backward Classes of citizens for the purpose of making reservation in civil posts and services under the Government of India, has constituted a National Commission for Backward Classes on 14th August 1993 through an enactment.

In order to achieve the full implementation of 27 per cent reservation to OBCs, the following benefits have been extended to them:

(i) The government has provided OBC candidates the benefit of

412 relaxed standards in respect of written examinations and interviews as in the case of SC/ST candidates with effect from 14th October 1994.

(ii) On 25th January 1995 the Government issued instructions relaxing the upper age-limit for OBC candidates in direct recruitment by three years and the number of attempts for OBC candidates who are otherwise eligible has been increased to seven in respect of Civil Services Examinations.

Besides, the National Finance and Development Corporations were set-up by the Government of India under the Ministry of Welfare (now Ministry of Social Justice and Empowerment) with the objective of providing concessional finance to the members of SCs, STs and OBCs living below the poverty line.

The debate on Muslim reservation as one of the affirmative action policy measure in India is largely revolving around the issue of backwardness and its solution for Muslims are rarely addressed on account of social stratification. Resaving opportunities, resources or offices for Muslim individual or groups for furthering their welfare and thereby ensuring justice – social, economic and political for backward Muslims is the core concept of reservation. Socio-economic and political disability of Muslims as a whole excluding elite class deprived them of the chances to compete with other classes on equal footing. Recently the 4.5% reservation given to minorities is a welcome step of the UPA II Government to uplift their socio-economic conditions.

We, the people of India, live on the same planet and in the same country but yet in very diverse circumstances. We are one people but the conditions we live in vary greatly. Most of us do not have even the means

413 to fulfill our basic needs. The economic difference between the haves and have-nots is so enlarged that the respective rich and poor populations look like they are people from different historical epoch, Keeping this anomaly in view, the framers of our Constitution evolved the policy of reservation. which was an effort to redistributing the national cake, Reservation is really and truly beneficial not only to the people concerned like the SCs, STs and OBCs, but also to the whole nation and the society for an overall and just development Whatever be the shortcomings and oppositions, or behind the screen scheming that go against reservation, the reservation has served well the nation and the Indian society, It has been accepted by all as a means to develop the disadvantaged, deprived and marginalized sections of the society, In fact, it has been recognized as a reliable mechanism to help the weaker sections of the society.

During the last sixty years, backward communities have been given every attention, which resulted in their members having occupied top executive positions, President, Vice-President and Chief Justice of the nation. During the period, a number of SCs, STs and OBCs have served as Governors of the State and cabinet ministers at the Centre as well as States, Members of these communities have been given due place in the decision-making process including policy planning of the government. The Government of India has a separate ministry at the Centre for the welfare of backward classes.

Though, relative terms the various provisions of reservation policy and the government efforts to implement them have had some positive impact on the socio-economic upliftment of SCs/STs and OBCs, it is very meagre in absolute terms, particularly in respect of tribes, However, it has created awareness among them about their social and economic condition in the society.

414 The Reservations for OBCs had multiple effects. They are yet to be realized in full. Reservations have been continuously progressing toward desired goal. They have proved to be of great satisfaction to the SCs/STs and OBCs communities as a whole. The SCs, STs and OBCs may be seen almost in all the fronts and every walk of life. Despite all these, they still have a long way to go before they can come up to the level of other communities in the fields of education, employment, etc. Indeed, there has been a quantitative improvement in the position of the beneficiary class but the benefit has not spread over to the entire populace covered by reservation policy. The members of the communities by and large are still not able to stand on their own while dealing with the upper castes and classes. Consequently, they have to look for quota reserved for them. The problem, therefore, still needs a thorough study and understanding of root cause of their inability and backwardness.

415 communities, then we can realize the needs of an equal society which was the dream of Dr. B.R. Ambedkar. The Massiah and champion of rights of the depressed classes.

The most important conclusion which researcher derives from this research work establishes that there is wisdom in justifying reservation policy for structurally disadvantaged groups. As the aim, vision and mission of our Constitution and Dr. Baba Saheb Ambedkar is equality irrespective of any bias on the basis of caste, colour, creed or sex. Backward classes should be nurtured, educated and uplifted properly and judiciously so that they could be empowered. To balance the society it is paramount that subjugated classes should be educated, sensitized, respected, employed and empowered at par.

Suggestions

2) Incentives and Financial Assistances to the Families, for encouraging individual SCs, STs and OBCs to pursue Higher Studies

416 3) Incentives to individual Teachers, Professors and Officials for encouraging helping developing and training SCs, STs and OBCs Students, Professionals, Employees and Officials

4) Incentives to Schools, Colleges, Universities and Government Departments / Ministries / Public Sector Enterprises, Banks. Financial Institutions, Autonomous Bodies and Private Sector for teaching employing and encouraging SCs, STs and OBCs.

5) Penalties for the Teachers, Professors, Officers and Schools, Colleges, Universities, Offices and other Establishments who/ which do not follow and fail to implement the Reservations, and discourage SCs, STs and OBCs

6) Reservations in all Govt. Offices, Public Sector Enterprises, Banks, Financial Institutions and Autonomous Institutions without any exceptions

7) Reservations in every Public Service, Post, Grade and Level, right from the top most Public Office to down below, without any exemption whatsoever

8) Reservations in all Educational Institutions Govt. or Private, in Admissions of Students and Scholars, and also in the. Recruitments and Promotions of Teaching Faculty as well as the non-Teaching Staff

9) Reservations in the Joint Sector Organizations

10) Reservations in all Establishments where the Govt. and the Public have a share

11) Reservations in all Establishments which make use of Public Facilities created with Public Funds, or created for the use of the

417 People

12) Reservations in all Establishments making use of Land and other Natural Resources of the Country

13) Reservations in Employment in all Private Sector Establishments

14) Reservations in all Courts, including Law Officers and the Judiciary

15) Lateral Entry of SCs, STs and OBCs into various Services and Cadres at higher Levels Grades and Posts, to improve and ensure their full Representations at every level

16) Free mobility of SCs, STs and OBCs Professionals and Academicians, between and across Govt. Bureaucracy, Administration, Public Sector, Joint Sector, Private Sector, Voluntary Organizations and into the Universities

17) National and State Level Administrative and Professional Training Establishments for the OBCs and minorities specially Muslims, to develop and improve their Administrative and Professional Competence and Capabilities

18) National SCs, STs and OBCs Housing Finance and Development Corporations

19) National and State/UT Level Centres for SCs, STs and OBCs Development

20) National Level Centres for Planning for, SCs, STs and OBCs Education and Employment

21) National and State/UT Level Task Forces, for Entrepreneurship Development amongst the SCs, STs and OBCs.

418 22) Separate Tribunals to look into and expeditiously dispose off the Cases of SCs, STs and OBCs Employees

23) Separate District Level Courts to expeditiously hear and decide the Cases of SCs, STs and OBCs Lands taken away by others

24) A Special Judicial Commission to exclusively look into the Judgements of the various Judges, who have a tendency to decide cases against SCs, STs and OBCs, and make specific recommendations to the Govt. to protect the interests and Welfare of the SCs, STs and OBCs

25) A Special Committee to visit and look into the working of SCs, STs and OBCs Student Hostels and make appropriate Recommendations to the Govt. to improve the Conditions and Working of these Hostels

26) Awards for Selection, Recruitment and Promotion of SCs, STs and OBCs, similar to those for the physically handicapped.

27) Recognition of Individuals and Institutions, working for the Development and Integration of the SCs, STs and OBCs specially backward Muslims.

28) Special Insurance Schemes, to protect and also provide succour and help to the SCs, STs and OBCs, from suspensions terminations and non-payment of salaries and wages

29) A Cadre of Rural Welfare and Labour Officers, to look into and expeditiously solve the Grievances of the Workers in the Rural Areas and in the Unorganized Sectors

30) Special Social Security Schemes, for the SCs & STs, especially the educated and unemployed

419 31) Special Tax Concessions, to SCs & STs to educate their Children, and for sending them for Higher Studies or Studies Abroad, and or for Specialist and Advanced Courses and Trainings

32) Special Concessions, to SCs & STs for building their own homes, to eliminate the slums and the growing problems associated with them that dehumanizes the people

33) Special Schemes and Concessions to SC & ST Entrepreneurs taking up self-employment, starting their own business, and setting up their own industries

34) Special Programmes, to harness and utilize the talents, knowledge and experiences of retired SCs, STs and OBCs Professionals, for the Development and improving the Standards of Life of the SCs, STs and OBCs Communities

35) Government should promote inter-caste marriages in big way for abolition of caste system

36) To weaken the caste system in society children born of inter-caste marriages should be given reservation

37) Benefit of reservation should be given only for first two children.

38) The benefit of reservation should also be given to those families who are living below poverty line. Irrespective of caste, color or sex.

39) The Govt. should also regularly Constitute an High Power Committee, at least every two years, to review the Allocation, Utilization, Appropriation and Diversion of the Funds meant and Budgeted for the Education Welfare and Development of the SCs, STs and OBCs both in the States/UTs and at the Centre.

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