In Indira Sawhney v. Union of India (1992), amongst other issues, the Supreme Court made an analysis on whether caste can be taken as a criterion in determining that caste as ‘socially and educationally backward class’, it said
61. The next important, but central point at issue is whether caste by the name of which a group of persons are identified, can be taken as a criterion in determining that caste as ‘socially and educationally backward class’ and if so, will it be the sole or dominant or one of the factors in the determination of “social and educational backwardness”.
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64. Articles 15(4), 16(4) and 340(1) do not speak of ‘caste’ but only ‘class’. The learned counsel particularly those appearing for anti-reservationists have stressed that if the makers of the Constitution had really intended to take ‘caste or castes’ as conveying the meaning of socially and educationally backward class, they would have incorporated the said word ‘caste or castes’ in Articles 15(4) and 340(1) as ‘socially and educationally backward caste or castes instead of ‘class or classes’ as they have adopted the expression in the case of ‘scheduled castes and scheduled tribes’. Similarly in Article 16(4) also they would have used the words as ‘backward caste or castes’ instead of ‘backward class’. It has been further urged that the very fact that the framers of the Constitution in their wisdom thought of using a wider expression, ‘classes’ in Articles 15(4) and 340 (1) and ‘class’ in Article 16(4) alludes that they did not have the intention of equating classes with the castes.
65. The word ‘caste’ is not used in the Constitution as indicative of any section of people or community except in relation to ‘Scheduled Castes’ which is defined in Article 366(24). However, the word ‘caste’ in Articles 15(2), 16(2) and 29(2) does not include ‘scheduled caste’ but it refers to a caste within the ordinary meaning of caste. The word ‘scheduled caste’ came into being only by the notification of President under Article 341. It would be appropriate, in this connection, to recall the observation of Fazal Ali, J. in his separate but concurring judgment in State of Kerala v. N.M. Thomas, 1976(1) SCR 986 wherein at p. 996, he has said that “the word ‘caste’ appearing after ‘scheduled’ is really a misnomer and has been used only for the purpose of identifying this particular class of citizens which has a special history of several hundred years behind it.”
66. Mathew, J. in his separate judgment in the same case (Thomas) has expressed that “it is by virtue of the notification of the President that the ‘Scheduled Castes’ came into being”.
67. Reference also may be made to the observation of Krishna Iyer, J. in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India 1981(2) SCR 185 at 234 where he has said :
“Terminological similarities are an illusory guide and we cannot go by verbal verisimilitude. It is very doubtful whether the expression caste will apply to Scheduled Castes. At any rate Scheduled Tribes are identified by their tribal denomination. A tribe cannot be equated with a caste. As stated earlier, their are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes”.
68. There is a long line of decisions dealing with the significance of the word ‘caste’ in relation to Hindus as being one of the relevant criteria, if not the sole criterion for asceraining whether a particular person or group of persons will fall within the wider connotation of ‘class’.
69. In M.R. Balaji v. State of Mysore, 1963 (Suppl) 1 SCR 439, Gajendragadkar, J. observed “Though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be the sole or the dominant test in that behalf.”
70. Subba Rao, J. speaking for the majority of the Constitution Bench in R. Chitralekha v. State of Mysore, 1964(6) SCR 368 at 389 has stated : “…….what we intend to emphasize is that under no circumstances a ‘class” can be equated to a “caste”, though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in 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 Article 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests.”
71. Mudholkar, J. in his dissenting judgment in considering the caste in determination of the backward class, has expressed his view thus :
“……..it would not be in accordance either with cl. (1) of Article 15 or Cl. (2) of Article 29 to require the consideration of the castes of persons to be borne in mind for determining what are socially and educationally backward classes. It is true that cl. (4) of Article 15 contains a non obstinate clause with the result that power conferred by that clause can be exercised despite the provisions of Cl. (1) of Article 15 and cl. (2) of Article 29. But that does not justify the inference that castes have any relevance in determining what are socially and educationlly backward communities.”
72. Wanchoo, C.J. speaking for the Constitution Bench in Minor P. Rajendran v. State of Madras, 1968(2) SCR 786 at 790 pointed out that “if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationlly backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4)”. (Emphasis supplied)
73. The learned Chief Justice in support of his above observation has placed reliance on Balaji.
74. In State of Andhra Pradesh v. P. Sagar 1968(3) SCR 595, it has been observed :
“…….the expression ‘class’ means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted.”
75. In Triloki Nath v. J. and K. State, (II) 1969(1) SCR 103 Shah, J. speaking for the Constitution Bench has reiterated the meaning of the word ‘class’ as defined in the case of Sagar and added that “for the purpose of Article 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.”
76. Further, this judgment reaffirms the view in Minor P. Rajendran’s case to the effect that if the members of an entire caste or community at a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because they are members of that caste or community but because they form a class.
77. Hegde, J. in A. Peeriakaruppan, v. State of Tamil Nadu, 1971(2) SCR 430 at 443 has observed :
“A caste has always been recognised as a class.”
78. Vaidialingam, J. in State of Andhra Pradesh v. U.S.V. Balram, 1972(3) SCR 247 in his conclusion upheld the list of Backward Class in that case as they satisfied the various tests, which have been laid down by Supreme Court for ascertaining the social and educational backwardness of a class even though the said list was exclusively based on caste. (Emphasis ours)
79. Chief Justice Ray in Kumari K.S. Jayasree v. The State of Kerala, 1977(1) SCR 194 was of the view that, “In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test …….”
80. Speaking for the Bench in U.P. State v. Pradip Tandon Ray, (AIR 1975 Supreme Court 563), Ray, the learned Chief Justice after stating that neither caste nor race nor religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15(4) when Article 15(1) forbids discrimination on grounds only of religion, race, caste observed that caste cannot be made one of the criteria for determining social and educational backwardness and that if the caste or religion is recognised as a criterion of social and educaional backwardness, Article 15 (4) stultify Article 15(1). Further, he observed that “It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes, the expression ‘classes’ in that case violates the rule of expressio unius est exclusio alterjus. The socially and educationally backward classes of citizens are groups other than groups based on caste.”
81. The learned Chief Justice also recognised the meaning of the expression “classes of citizens” in line with the observation made in Triloki Nath (II) (AIR 1969 Supreme Court 1) and Sagar (supra) and explained the traits of social backwardness, economic backwardness and educational backwardness.
82. See also Akhil Bhartiya Soshit Karamchari Sangh (supra) and K. C. Vasant Kumar (supra).
83. Though there is tremendous ambivalence in a host of judgments rendered by Supreme Court, not even a single judgment has held that class has no relevance to caste at all wherever caste system is prevalent.
84. Collating the above said views expressed by Supreme Court in a catena of decisions as regards the relevance and significance of the caste criterion in the field of identification of ‘socially and educationally backward classes’ it may be stated that caste neither can be the sole criterion nor can it be equated with ‘class’ for the purpose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of ‘backward class’. Nevertheless ‘caste’ in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens. Unless ‘caste’ satisfies the primary test of social’ backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the ‘backward class’ a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of ‘backward class of citizens’ under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata – indicating the social backwardness.
85. True, the caste system is predominantly known in Hindu society and runs through the entire fabric of the social structure. Therefore, the caste criterion cannot be divested from the other established and agreed criteria in identifying and ascertaining the backward classes.
86. It is said that the caste system is unknown to other communities such as Muslims, Christians, Sikhs, Jews, Parsis, Jains etc. in whose respective religion, the caste system is not recognised and permitted. But in practice, it cannot be irrefutably asserted that Islam, Christianity, Sikhism are all completely immune from casteism.
87. There are marked distinctions in one form or another among various sections of the Muslim community especially among converts to Islam though does not recognise such kind of divisions among Muslims and professes only common brotherhood.
88. There are various sects or separate groups of people in Muslim communities being identified by their occupation such as Pinjara in Gujarat, Dudekula (cotton beaters) in Andhra Pradesh, Labbais, Rowthar and Marakayar in Tamil Nadu.
89. Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Chiristians and Harijan Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindu they interact and have their familiar relationship and marital alliances only within the converted caste groups.
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95. The Nav Budhists, and Neo Budhists the majority of whom are converts from Scheduled Castes enjoy the reservation on the ground that their low status in that community have not become advanced equal to the status of others and their social backwardness is not changed in spite of the change of their religion.
96. Sikhism, no doubt, strictly believes in social equality and justice, denounces all sorts of social discrimination between man and man, strongly advocates the equality and parity in all humanity and propagates that caste, birth or colour cannot make one superior or inferior. All the Gurus of Sikhism have advocated and articulated the concept of equality of man as the basis of egalitarian society. Notwithstanding Sikhism is violently against casteism, some converts to Sikhism from the Scheduled Castes still retain their caste label.
97. Thus even among non-Hindus, there are occupational organisations or social groups or sects which are having historical background/evolution. They too constitute social collectives and form separate classes for the purposes of Article 16(4).
99. Reference may be made to paragraphs 12.11 to 12.16 of Chapter XII of the Report.
100. After identifying in paragraph 12.18, the Commission has laid down the following tests for identifying non-Hindu OBCs :
“12.18 After giving a good deal of thought to these difficulties, the Commission has evolved the following rough and ready criteria for identifying non-Hindu OBCs :-
i) All untouchables converted to any non-Hindu religion; and
ii) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. (Examples; Dhobi, Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc.)”
101. Even assuming that the caste factor would not furnish a reliable yardstick to identify ‘socially and educationally groups’ in the communities other than Hindu community as there is no commonness since all sections of people among Budhists, Muslims, Sikhs and Christians etc. and as the respective religion of those communities do not recognise the caste system, yet on the principle of the other agreed criteria such as traditional occupation, trade, place of residence, poverty lack of education or economic backwardness etc., the social and economic backwardness of those communities could be identified independently of the caste criterion. Once these ‘caste less societies’ are tested on the anvil of the established relevant criteria dehors the caste criterion, there may not be any difficulty in identifying the socially and educational backwardness of the section of the people of that community and classifying them as ‘backward class of citizens’ within the meaning of Article 16(4).
108. The Mandal commission in Chapter IV of its report under the heading “Social Backwardness and Caste” has concluded its view with a query under paragraph 4.33 of its Report (Volume I) thus :
“In view of the foregoing will it be too much to say that in the traditional Indian society social backwardness was a direct consequence of caste status ………”
111. It is apposite. in this context, to Make reference of the views expressed by the Mandal Commission stating that there is “a close linkage between caste ranking of a person and his social educational and economic status…….In India, therefore, the low ritual caste status of a person has a direct bearing on his social backwardness”.