WEAKER SECTIONS OF SOCIETY AND THE CONSTITUTION: A SOCIO-LEGAL ANALYSIS THESIS SUBMITTED FOR THE AWARD OF THE DEGREE OF ©octor of Pjilosopljp IN BY AKHLAQ AHMAD READER DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH (INDIA) 2003 **H>C T- 6^7 *,,/ \"v. y :<^ -', ; T620V I CONTENTS AKNOWLEDGEMENT Chapter-1 01-21 INTRODUCTION Chapter-II 22-77 SOCIO-ECONOMIC JUSTICE: GENESIS AND DEVELOPMENT A. AN OVERVIEW B. THE CONCEPT OF JUSTICE - SOCIAL, POLITICAL & ECONOMIC C. SOCIAL COMPARTMENTALIZATION IN INDIA Socio-Religious Permutation i. Lingua-Cultural Permutation ii. Ethno-Racial Permutation D. DEMOCRATIC NORMS AND REALITIES: A CONSTITUTIONAL PRESPECTTVE E. EGALITARIAN NORMS In England i. In U.N. Charter ii. In India Chapter-III 78-112 PRINCIPLES OF EQUALITY: DIMENSIONS AND DEVICES A. AN OVERVIEW B. NOTION OF EQUALITY IN ENGLAND C. NOTION OF EQUALITY IN U.N. CHARTER THESIS D. NOTION OF EQUALITY IN INDIA Chapter-IV 113-159 SOCIO-POLITICAL JUSTICE TO THE WEAKER CLASSES A. AN OVERVIEW B. GENESIS OF THE SOICO-POLITICAL JUSTICE i. Simon Commission: The British Policy ii. The Communal Award: Divide and Rule Policy C. THE DELIMITATION LAW ITS ROLE AND WORKING Election Commission Rules Thereunder i. Rotation of the Reserved Constituencies ii. The Concept of Double Membership Constituency D. THE RESERVATION OF SEATS: AN UNPRECEDENTED STEP Reservation Criteria i. Reservation: Extent and Scope ii. SCs, STs and OBCs: Special Measures Under the Constitution Chapter-V 160-213 SOCIO-ECONOMIC POLICIES AND CONSTITUTIONAL WISDOM OF NON-DISCRIMINATION A. ANOVERVIEW B. RIGHT TO EQUALITY: DIMENSIONS i. Equality Before Law ii. Equal Protection of Laws (a). Province of Article 15(1) (b). Province of Article 16(1) Ill C. FROM EQUALITARIANISM TO EGALITARIANISM i. Article 15(4) ii. Article 16(4) Chapter-VI 214-305 PHILOSOPHY AND WISDOM OF PROTECTIVE DISCRIMINATION UNDER THE CONSTITUTION VIZ-A-VIZ JUDICIAL DICTA A. AN OVERVIEW B. CONCEPT OF PROTECTIVE DISCRIMINATION C. CONSTITUTIONAL CLASSIFICATION FOR PREFRENTIAL TREATMENT (a). Scheduled Castes (b). Scheduled Tribes (c). Backward Classes D. PROTECTIVE DISCRIMINATION AND JUDICIAL ACTION 1. Identification of Scheduled Castes and Scheduled Tribes 2. Determination of "Backward Classes" and Judicial Response (a). Criteria for Backwardness (i). Caste Criteria (ii). Poverty or Economic Criteria (b). Article 15(4) and 16(4)-Compatibility and Judicial Treatment (i). Article 16(4) - Exception, proviso or instance of Article 16(1)? (ii). Whether Article 16(1) Permits Reservation? IV E. LIMITATION AND LAXITIES (i). Limitation on Reservation (ii). Backward and More Backward Classification (iii). Concept of Creamy Layer CONCLUSION AND SUGGESTIONS 306-328 ANNEXURE -1 329-337 ANNEXURE - II 338-340 ANNEXURE - III 341-343 TABLE OF CASES 344-349 BIBLOGRAPHY 350-358 ACKNOWLEDGEMENT Prostration and Praise to Allah, the most benevolent and most merciful whose grace and blessings have enabled me to complete this study in its present form. I express my gratitude to Prof. Mohd Isahque Qureshi, Dean and Chairman, Faculty of Law, Aligarh Muslim University, Aligarh for his help and support in completing this research endeavour. I acknowledge the services rendered by my learned colleague Prof. Saleem Akhtar, Ex-Dean and Chairman, Faculty of Law, Aligarh Muslim University, Aligarh, during the course of this study. I am grateful to all the teachers of the Faculty of Law and well- wishers for their good wishes and appreciate the cooperation extended by the Library Staff. I put to record my encomiums and sense of elation to my family members whose help and support proved to be a bedrock during the course of this study. And finally, I appreciate the immaculate and able typing work performed by Mr. Mohd Yaseen Khan. ft • t'We--TA/\ (AKHLAX^HMAl)) * CHAPTER - I 1 INTRODUCTION A democratic ideal of justice must rest on the three foundations of equality, liberty and ultimate control of government by the people. It is, however, far from easy to give these concepts a specific content. Democracy is certainly based on the ideal of equality, but no democratic state has seriously attempted to translate this ideal into the absolute equality of all. There are numerous inevitable inequalities of function and status, between adults and infants between sane persons and insane, between civilians and military, between private citizens and officials. We can still not formulate the principle of equality in more specific terms than Aristotle who said that justice meant the equal treatment of those who are equal before the law. We can give to this apparent tautology a more concrete meaning by saying that a democratic ideal of justice demands that inequalities shall be inequalities of function and service but shall not be derived from distinctions based on race, religion, or other personal attributes.1 This means that a judiciary as independent from interference by the executive as is possible, given the interlocking of state functions and the human factor in the judicial function, is an essential of the democratic ideal of justice. But it is impossible to lay down a generally accepted rule 2 either as to the substance of these rights or as to the manner of their protection. The Declaration of Rights, adopted in 1948 by the United Nations, is vastly different from the Bill of Rights embodied in the American Constitution. The Australian Constitution contains no individual rights other than the guarantee of religious freedom and perhaps - though this is still very much open to doubt - a protection of the individual from the restriction of free inter-state trade by state regulation (section-92). British law knows of no guarantees of individual rights other than the limited guarantees of personal freedom in the Bill of Rights of 1688 and the Habeas Corpus Acts. Some additional protection for individuals is provided by the procedures established under the European Convention on Human Rights and Fundamental Freedom. In one type of democracy, a written constitution, which it is normally veiy difficult to alter, formulates and at the same time petrifies the meaning of the rue of law in a manner binding upon legislative and executive alike.2 The state acts first as a protector. This is its traditional function, and classical liberal thought regards it as the only legitimate function of the state. Older British and American decisions reflect tins conception in describing defence, foreign affairs police and the administration of justice as the legitimate functions of the state.3 To this may be added a limited taxing power confined to the efficient discharge of these functions. These 3 are the traditional spheres of state sovereignty, and consequently, it is in this field that the inequalities which detract from the rule of law in Dicey's sense are most evident, though Dicey consistently attempted to belittle them for the sake of his principle.4 The State functions as arbiter between different groups in society. The term 'collectivist' state is often used loosely. A social-service state need not be collectivist. It can be a parental or dictatorial state, dispensing social welfare among the citizens while forbidding them to engage in any autonomous collectivist association, like Nazi Germany or Fascist Italy or Franco's Spain. On the other hand, the state may take complete responsibility for all group activities going on within its borders, while regarding their quasi-autonomous organization as convenient and necessary form an administrative and managerial point of view.5 The harsh reality is that the independent India had to inherit a complex caste problem. The wise founding-fathers of our Constitution knew it well that in free India any discrimination and exploitation by any section of society against any other sections could not be justified either morally or legally. So it was realized that the Colonialism of the higher caste must be ended through the Constitution. It is in this background that it became indispensable for them to adopt a policy of compensatory discrimination as an equalizer to those who were too weak socially and 4 economically in the case ridden society. They were quite aware that these masses had suffered social injustice too long and been separated by the poverty curtain too strong that if peaceful transformation of the nation into an egalitarian policy were not achieved, chaos, upsurge and massive disruptions would destroy the peaceful progress which is freedom's tryst with Indian destiny.6 Thus, the architects of our National Charter rightly considered the reservation in the various spheres of the life as one of the potential means of reducing inequalities. Special concessions have been made to these castes in terms of reservation of seats in the legislative, educational institutions, and government services and in terms of pecuniaiy benefits. The primary objective of the Constitution framers was that this backward and suppressed segment of Indian population should be emancipated at the accelerated pace to catch them up with the overall pace of national development. Unfortunately, Indian social system has for centuries perpetrated social and economic injustices by the so-called higher castes on the lower castes who have been systematically denied equal chance in the opportunities and facilities of the larger society. They have always been set apart from the mainstream of the national life and remained socially oppressed, economically condemned to live the life of penury and educationally coerced to learn the family-trade or occupation 5 and