RESERVATION: IDENTIFICATION AND DETERMINATION OF BACKWARD CLASSES IN INDIA A THESIS SUBMITTED TO THE UNIVERSITY OF NORTH BENGAL FOR THE AWARD OF DEGREE OF DOCTOR OF PHILOSOPHY IN LAW SUBMITTED BY OM PRAKASH SHARMA SUPERVISOR PROFESSOR (Dr.) B. P. DWIVEDI DEPARTMENT OF LAW UNIVERSITY OF NORTH BENGAL RAJA RAMMOHUNPUR, DARJEELING (W.B.) APRIL, 2013 DECLARATION I, hereby, declare that the thesis entitled “RESERVATION: IDENTIFICATION AND DETERMINATION OF BACKWARD CLASSES IN INDIA”, has been prepared by me under the guidance of Professor (Dr.) B. P. Dwivedi, Department of Law, University of North Bengal, Raja Rammohunpur, Darjeeling. No part of this thesis has formed the basis for the award of any degree or fellowship previously. (OM PRAKASH SHARMA) Department of Law University of North Bengal Raja Rammohunpur P.O- North Bengal University (Pin- 734013) Dist- Darjeeling West Bengal, India Date: Abstract ABSTRACT Indian society has always been full of inequalities. It was a caste ridden stratified hierarchical society, and a particular segment of the society had been discriminated and denied the bare human rights. It was natural that the higher castes were able to exploit the lower ones. Members of lower castes always suffered from discrimination in all areas of life. One of the worst effects of caste system was that access to knowledge and learning was denied to the lower castes. The social and economic exploitations resulted in discrimination, misery, poverty and other disabilities. The economic backwardness brought social backwardness which consequently made them down trodden and thus depriving them even of the dignity of life This caste system divided the Indian society into forward and the backward classes. Since the majority of Indian population was Hindu, the impact of this caste discrimination was severe and wide. In a society as ours where there exist forward and backward, higher and lower social groups the first step to achieve social integration is to bring the lower or backward social group to the level of the forward or higher social groups. The trinity of the goal of the Constitution viz., socialism, secularism and democracy cannot be realized unless all sections of the society participate in the state power equally, irrespective of their caste, community, race, religion and sex and all discrimination in the sharing of the state power made in those grounds are eliminated by positive measures/actions To ensure protection of backward classes of citizens it was necessary that members of backward classes be appointed in the state services so the power was given to the state to provide for reservation of such appointments. Accordingly the provision was made for the reservation of jobs in terms of Article 16(4). i Abstract The word “Backward” as used in the Constitution of India is nowhere defined. Article 15(4) uses the word socially and educationally backward classes and the Scheduled Castes and Scheduled Tribes. Whereas Article 16(4) uses the word ‘backward’. So far the work of this research is concerned, it is confined only with Article 16(4) of the Constitution and thus the backward word as used in this Article is the subject matter of this research work. So far SCs and STs are concerned the Constitution defines them and their ascertainment does not pose major problems. The geographical and cultural factors make the identification of the SCs / STs fairly simple but the question as to who are deemed to be the Other Backward Classes and what criteria should be adopted in determining their backwardness for the purpose of reservation in jobs and educational institutions give rise to serious difficulties. The question of backwardness has also become a subject matter of considerable litigation. No doubt the judiciary has over the years made numerous attempts to evolve a secular, scientific and rational formula for adjudging backwardness yet the judicial attempt in this direction have not resulted in concretizing any well-defined principle that could find an application in every case. The identification of backward classes had been left to the states. States and Union Territories adopted different criteria of backwardness, several of which have been subjected to judicial review. The judicial verdicts have thrown up several guidelines for the identification of backward classes. The demand for determining as to who the OBCs are, was made several times in parliament. The clamor ultimately led to the appointment of the several backward class commissions. The present reservation policy is made on the basis of the recommendation made by the Second Backward Classes Commission Report. The lacuna of this report is that the commission has studied the condition of the backward class people prevailing in pre independence and took note of the Caste Census 1931. After independence, the government has made several attempts for the upliftment of these classes and that reduced the disparities between backward and the forward classes. The questions relating to reservation are so many and so vast that it is not possible to incorporate and to answer all the questions relating to reservation. So I ii Abstract have selected certain questions and tried to find out answers of those questions in my thesis. An attempt has been made in this work to discuss the aforesaid issues analytically and to suggest appropriate solution. For the sake of better presentation of entire research work / thesis has been divided into seven chapters including the introduction and the conclusion. The method to be applied for this study is primarily doctrinaire research, the historical analytical methodology of research has been applied and a systematic analysis is made. Only the Supreme Court cases have been taken for the study on different issues concerning the subject matter. Reservation is one of the many facets of equality and undoubtedly a means to bring unequals and down-trodden to the levels of equals and to provide them social justice. It is undeniable fact that by reservation at least some families in the backward classes gained sufficient means to develop their capacities to compete with others in every field. Such change was not only because of reservation but it was a combined effect of lots of factors. With the increase of industrialization and urbanization which necessarily followed in its wakes, the advances on political, social and economic front made particularly after the commencement of the constitution, the social reform movements of the last several decades, the spread of education have played their roles. The existing policy of reservation needs fundamental and drastic changes. Neither it could bring about the desired social reconstruction, nor did it help to ameliorate the socio-economic conditions of the weaker sections. Instead creating distrust and tension between various segments of society, a time bound programme to uplift all the weaker sections is needed. So it is recommended that the reservation in favour of Other Backward Classes should continue for further period. It is believed that, if the reservation policy is implemented whole-heartedly and properly, the concept of reservation would be a subject of History and it would be found only in the Museums. The day will come and it is hoped that day will come soon. iii UNIVERSITY OF NORTH BENGAL DEPARTMENT OF LAW University of North Bengal PROFESSOR (Dr.) B. P. DWIVEDI Raja Rammohunpur P.O- North Bengal University Dist- Darjeeling West Bengal, India. Pin- 734 013. Phone: (0353) 2776307 CERTIFICATE This is to certify that Mr. Om Prakash Sharma has pursued his research work on the topic entitled “RESERVATION: IDENTIFICATION AND DETERMINATION OF BACKWARD CLASSES IN INDIA” under my supervision and he has fulfilled all the requirements under the U G C Ph. D Regulation, 2009. Now his thesis is ready for submission. It is an original piece of work and it has not been submitted anywhere for the award of any degree. It may hence be submitted for evaluation before examiners for the award of the degree of Doctor of Philosophy (Law) of the University of North Bengal. Professor (Dr.) B. P. Dwivedi Preface PREFACE The concept of Reservation is one of the most controversial among the policies undertaken by the government to bring the backward classes to the level of forward class. The fact that the Constitution provides reservation for the advancement of the backward sections of the society, no further justification is required to defend such policy. Reservations, on the other hand provoke resentment and dismay of various kinds, as they impinge heavily on the careers of specific individuals who are compelled to pay the price for collective good. In the face of the recent anti-reservation agitation and unabated violent disturbances over the new reservation policy the wider discourse that takes place today centers round the meaning of backward classes and the criterion for determining these groups. Article 15(4) uses the word socially and educationally backward classes and the Scheduled Castes and Scheduled Tribes and Article 16(4) uses the word ‘backward’. So far the work of this research is concerned, it is confined only with Article 16(4) of the Constitution and thus the backward word as used in this Article is the subject matter of this research work. A humble attempt has been made in this research work to find out the appropriate criterion for determining the backward classes which serve the maximum interests with minimum friction and waste. The present work is the outcome of the different intellectual thoughts of different people who have contributed in their capacities to bring this thesis in present form. So I acknowledge their contributions. iv Preface It is indeed a great pleasure to express my deep and profound gratefulness to my supervisor Prof. (Dr). B. P. Dwivedi for bestowing much of his valuable time and thought in going minutely through every word of the work and making appropriate corrections, alterations if any and valuable suggestions.