The Mandal Commission Report that recommended reservation to backward Class, was attacked on various ground when it was challenged in Indira Sawhney Case. (Indira Sawhney v Union of India 1993 (1) SCT 448)
Below are mentioned the grounds on attack and the answers of the Court to that attack. It is taken from the separate judgment of S. Ratnavael Pandian. J.
“The first attack against the Report is that it is perpetuating the evils of caste system and accentuating caste consciousness besides impeding the doctrine of secularism, the net effect of which would be dangerous and disastrous for the rapid development of the Indian society as a whole marching towards the goal of the welfare state. According to them, the identification of SEBCs by the Commission on the basis of caste system is bizzare and barren of force, muchless exposing hollowness. Therefore, the OMs issued on the strength of the Mandal Report which is solely based on the caste criterion are violative of Article 16(2).
133. The above criticism, in my considered view, is very uncharitable and bereft of the factual position. Hence it has to be straightaway rejected as unmeritorious since that Report is not actually based solely on caste criteria but on the anvil of various factors grouped under three heads i.e. social, educational and economic backwardness but giving more importance – rightly too – to the social backwardness as having a direct consequence of caste status.
134. Adopting the policy of ‘Running with the hare and hunting with the hounds’, a conciliatory argument was advanced saying that although it is necessary to make provisions for providing equality of opportunity in matters of public employment ‘in favour of any backward class’ in terms of Article 16(4), the present Report based on 1931 census can never serve a correct basis for identifying the ‘backward class’, that therefore, a fresh Commission under Article 340(1) of the Constitution is required to be appointed to make a fresh wide survey throughout the length and breadth of the country and submit a new list of OBCs (other backward classes) on the basis of the present day Census and that there are million ways of guaranteeing progress of backward classes and ensuring that it percolates down the social scale, but the Mandal Commission is the one.
135. Firstly, in my view if the above argument is accepted it will result in negation of the just claim of the SEBCs to avail the benefit of Articles 16(4) which is a fundamental right.
136. Secondly, this attack is based on a misconception. A perusal of the Report would indicate that the 1931 census does not have even a remote connection with the identification of OBCs. But on the other hand, they are identified only on the basis of the country-wide socio-educational field survey and the census report of 1961 particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes and personal knowledge gained through extensive touring and receipt of voluminous public evidence and lists of OBCs notified by various States. It was only after the identification of OBCs, the Commission was faced with the task of determining their population percentage and at that stage 1931 census became relevant. It is to be further noted after 1931 census, no caste-wise statistics had been collected. In fact, the identification of classes by the Commission was based on the realities prevailing in 1980 and not in 1931. It is brought to our notice that the same method had already been adopted in Section 5 of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.
139. In the background of the above discussion, the anti-reservationists cannot have any legitimate grievance and justifiably demand this Court to throw the Report overboard on the mere ground that 1931 census had been taken into consideration by the Commission.
141. Therefore, for the aforementioned reasons,I hold that the above submission made against the Report with reference to the consideration of Census of 1931 cannot be countenanced.
142. After having gone through the Commission’s Report very assiduously and punctiliously, I am of the firm view that the Commission only after deeply considering the social, educational and economic backwardness of various classes of citizens of our country in the light of the various propositions and tests laid down by this Court had submitted its Report enumerating various classes of persons who are to be treated as OBCs. The recommendations made in the present Report after a long lull since the submission of the Report by the First Backward Classes Commission are supportive of affirmative action programmes holding the members of the historically disadvantaged groups for centuries to catch up with the standards of competition set up by a well advanced society.
143. As a matter of fact the Report wanted to reserve 52% of all the posts in the Central Government for OBCs commensurate with their ratio in the population. However, in deference to legal limitation it has recommended a reservation of 27% only even though the population of OBCs is almost twice this figure.
144. Yet another argument on behalf of the anti-reservationists was addressed contending that if the recommendations of the Commission are implemented, it would result in the sub-standard replacing the standard and the reigns of power passing from meritocracy to mediocrity; that the upshot will be in demoralization and discontent and that it would revitalize caste system, and cleave the nation into two – forward and backward -and open up new vistas for internecine conflict and fissiparous forces, and make backwardness a vested interest.
145. The above tortuous line of reasoning, in my view is not only illogical, inconceivable, unreasonable and unjustified but also utterly overlooks the stark grim reality of the SEBCs suffering from social stigma and ostracism in the present day scenario of hierarchical caste system. The very object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to those who have been placed in a very discontent position from time immemorial on account of sociological reasons. To put it differently, the purpose of clause (4) is to ensure the benefits flowing from the fountain of’ this clause on the beneficiaries namely the Backward Classes – who in the opinion of the Constitution makers would have otherwise found it difficult to enter into public services. competing with advanced classes and who could not be kept in limbo until they are benefited by the positive action schemes and who have suffered and are still suffering from historic disabilities arising from past discrimination or disadvantage or both. However, unfortunately all of them had been kept at bay on account of various factors, operating against them inclusive of poverty. They continue to be deprived of enjoyment of equal opportunity in matters of public employment despite there being sufficient statistical evidence in proof of manifest imbalance in Government jobs which evidence is Sufficient to support an affirmative action plan. If candidates belonging to SEBCs (characterised as mediocre by anti-reservationists), are required to enter the open field competition, along with the candidates belonging to advanced communities without any preferential treatment in public services in their favour and go through a rigid test mechanism being the highly intelligence test and professional ability test as conditions of employment, certainly those conditions would operate as “built-in headwinds” for SEBCs. It is. therefore, in order to achieve equality of employment opportunity, clause (4) of Article 16 empowers the State to provide permissible reservation to SEBCs in the matters of appointments or posts its a remedy so as to set right the manifest imbalance in the field of public employment.
146. The argument that the implementation of the recommendations of the Commission would result in demoralisation and discontent has no merit because conversely can it not be said that the non-implementation of the recommendations would result in demoralisation and discontent among the SEBCs.
147. Though ‘equal protection’ clause prohibits the State from making unreasonable discrimination in providing preferences and facilities for any section of its people, nonetheless it requires the State to afford substantially equal opportunities to those, placed unequally.
148. The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of’ which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive methodological approach encompassing Jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally.
149. It is more appropriate to recall that “There is equality only among equals and to equate unequals is to perpetuate inequality.”
150. Therefore, the submission that the implementation of the recommendations of the Report will curtail concept of equality as enshrined under Article 14 of the Constitution and destroy the basic structure of the Constitution cannot be countenanced.
151. One of the arguments criticising the Report is that the said Report virtually rewrites the Constitution and in effect buries 50 fathoms deep the ideal of equality and that if the recommendations are given effect to and implemented, the efficiency of administration will come to a grinding halt. This submission is tantamount to saying that the reservation of 27% to SEBCs as per the impugned OMs is opposed to the concept of equality.
152. There is no question of rewriting the Constitution, because the Commission has acted only under the authority of the notification issued by the President. It has after laying down the parameters in the light of the various pronouncements of this Court has ultimately submitted its Report recommending the reservation in tune with the spirit of Article 16 (4).
153. The question whether the candidates, belonging to the SEBCs should be given a preferential treatment in matters of public employment to such time as it is necessary, receives a fitting reply in Devdasan (AIR 1964 Supreme Court 179) wherein Subba Rao, J. (as the learned Chief Justice then was) has observed, by citing an illustration as to how the manifest imbalance and inequality will occur otherwise, thus :
“To make my point clear, take the illustration of a horse race. Two horses are set down to run a race – one is a first class race horse and the other an ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs. That is why the makers of the Constitution introduced cl. (4) in Article 16.”
154. It will be befitting, in my opinion, to extract a passage from the book, Bakke, Defunis and Minority Admissions (The Quest for Equal Opportunity) by Allan P. Sindler wherein at page 9, the unequal competition is explained by an analogy which is as follows :
“A good way to appreciate the “something more” quandary is to consider the metaphor of the shackled runner, an analogy frequently advanced by spokesmen for minorities :
‘Imagine two runners at the starting line, readying for the 100-yard dash. One has his legs shackled, the other not. The gun goes off and the race begins. Not surprisingly, the unfettered runner immediately takes the lead and then rapidly increases the distance between himself and his shackled competitor. Before the finish line is crossed, over the judging official blows his whistle, calls off the contest on the grounds that the unequal conditions between the runners made it an unfair competition, and orders removal of the shackles.’
Surely few would deny that pitting a shackled runner against an unshackled one is inequitable and does not provide equality of opportunity. Hence, cancelling the race and freeing the disadvantaged runner of his shackles seem altogether appropriate. Once beyond this point, however, agreement fades rapidly. The key question becomes what should be done so that the two runners can resume the contest on a basis of fair competition ? Is it enough after removing the shackles, to place both runners back at the starting point ? or is “something more” needed, and if so, what ? Should the rules of the running be altered, and if so, how ? should the previously shackled runner be given a compensatory edge, or should the other runner be handicapped in some way ? How much edge or handicap ? “
155. To one of the queries posed by the author of the above analogy, the proper reply would be that even if the shackles whether of iron chains or silken cord, are removed and the shackled person has become unfettered, he must be given a compensatory edge until he realises that there is no more shackle on his legs because even after the removal of shackles he does not have sufficient courage to compete with the runner who has been all along unfettered.
156. Mr. Ram Awadesh Singh, an intervener demonstrably explained that as unwatered seeds do not germinate, unprotected backward class citizens will wither away.
157. The above illustration and analogies would lead to a conclusion that there is an ocean of difference between a well advanced class and a backward class in a race of open competition in the matters of public employment and they, having been placed unequally, cannot be measured by the same yardstick. As repeatedly pointed out, it is only in order to make the unequals equals, this constitutional provision, namely, clause (4) of Article 16 has been designed and purposely introduced providing some preferential treatment to the backward class. It is only in case of denial of such preferential treatment, the very concept of equality as enshrined in the Constitution, will get buried 50 fathoms deep.”
Reference
Indira Sawhney v Union of India 1993 (1) SCT 448.