Justice R.M. Sahai [1]
581. From out of various backward class of citizens who could be provided protection under Article 16(4) the President has been empowered by Article 340 to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India. What does the expression ‘socially and educationally backward classes’ connote ? How it should be understood ? Is it social backwardness only ? Is the educational backwardness surplusage ? Article 340(1) of the Constitution reads as under :
“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 that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.”
A bare reading of the Article indicates that the avowed objective of this provision is to empower the President to appoint a Commission to ascertain the difficulties and the problems of the socially and educationally backward classes and to make recommendations so that steps may be taken by the Union and the States to solve their problems, remove their difficulties and improve their conditions. Since backwardness has been qualified by the words ‘social and educational’ the ambit of the expression is not as wide as backward class in Article 16(4). What does it mean then ? A social class, ‘is an aggregate of persons within a society possessing about the same status ‘. How to determine backwardness of such a class. The yardstick of backwardness in any society is, primarily, economic. But Indian society, ‘has made caste as the sole hierarchy of social ranking and uses the caste system as the basic frame of reference ‘. Expert Panel of Mandal Commission described it as ascribed status, that is, status of a person determined by his birth. The social backwardness in pre-independence period, no doubt, arose because of caste stratification. Members of caste other than Brahmans, Thakurs and Vaishyas were socially backward. But with foreign domination, enlightened movements both social and religious, acquisition of wealth and power a gradual caste mobility took place not only to consolidate but even to assert a higher social status. ‘The struggle launched by these backward castes as a subaltern in the pre-independence period, changed its course in the post independence period’ due to vested interest in reservation, ‘It is well known that up to year 1931, the last census year for which castes are recorded, there were several castes applying for changing their names to those indicative of higher caste status. In that period name indicated status. The trend now is to claim backwardness both among the Hindus and Muslims by claiming the same caste status by various devices as those who are legally considered as backward caste’ are the beneficiaries of reservation. While determining social backwardness, therefore, one cannot loose sight of the type of society, the social mobility, the economic conditions, the political power. Even the expert Panel noticed few of these but then it got lost in ascribed status. The social backwardness in 1990 for purposes of employment in services cannot be status by birth but backwardness arising out of other elements such as class, power etc. Dr. Pandey in his book [The Caste System in India] after an elaborate study has concluded,
“1. Class, independent of caste, determines social ranking in Indian society in certain domains;
2. Analysis of caste alone is not sufficient to provide the real picture of stratification in India today;
3. A proper study of stratification in modern India must concern with other dimensions, viz., class, status and power.”
While explaining power he has observed in ‘past power was located in the dominant caste’. But if is now changing in two senses, ‘first, power is shifting from one caste (or group of castes) to another. Secondly, power is shifting from caste itself and comes to be located in more differentiated political organs and institutions. This has been empirically found by Beteille, and others on the basis of his studies of Kammas and Reddis of Andhra Pradesh. Harrison writes : “This picture of political competition between the two caste groups is only a modern recurrence of an historic pattern dating back to the fourteenth century. Srinivas’ analysis of politics in Mysore gives a central place to rivalries between the dominant castes : “As in Andhra, the Congress is dominated by two leading peasant castes, one of which is Lingayat and the other Okkaliga. Lingayat Okkaliga rivalry is colouring every issue, whether it be appointment to government posts or reservation of seats in colleges, or election to local bodies and legislatures.” Both – Harrison’s study in Andhra Pradesh and Srinivas’ in Mysore – depict the rise to power of the two pairs of non-Brahman dominant castes followed by the decline of the Brahmans”. Any determination of social backwardness, therefore, cannot be valid unless these important aspects are taken into consideration.
582. Educational backwardness too was not added just for recitation. No word in Statute, more so in a Constitution, can be read as surplusage. In none of the decisions of this Court under Article 15(4) it has been held that educational backwardness was irrelevant. In Balaji (AIR 1963 Supreme Court 649) declaration of minor community as educationally backward was not accepted as correct since the student community of 5 per thousand was not below the State average. In Balram the court approved acceptance by the government of criteria adopted by the Commission for determining social and educational backwardness of the citizen, namely,
“(i) the general poverty of the class or community as a whole,
(ii) Occupations pursued by the classes of citizens, the nature of which must be inferior or unclean or undignified and unremunerative or one which does not carry influence or power;
(iii) Caste in relation to Hindus; and
(iv) Educational backwardness.”
In the hoary past the education amongst Hindus was confined to a particular class, that is, the Brahmins, but with advent of Muslim rule and British regime this barricading fell down, considerably, and the education, spread amongst other classes as well. But even in those times there was a section of society which was kept away, deliberately, from education’ as they were not permitted to enter the schools and colleges. That has been done away with by the Constitution. Yet the education with all efforts has not filtered to certain classes particularly in rural areas and many traditionally educationally backward still suffer from it. At the same time many groups or collectivity did not opt for education for various reasons, personal or otherwise. Therefore, a Commission appointed under Article 340 cannot determine only social backwardness. Any class to be backward .under Article 340 must be both socially and educationally backward.
583. Two things emerge from it, one, that the backward class in Article 16(4) and socially and educationally in Article 340, being expressions with different connotations they cannot be understood in one and same sense. The one is wider and includes the other. A socially and educationally backward class may be backward class but not, vice versa. Other is that such investigation cannot be caste based. Meaning of expression ‘socially and educationally backward’ class of citizens was explained in Pradeep Tandon (AIR 1975 Supreme Court 563) as under :
“The expression ‘classes of citizens’ indicates a homogeneous section of the people who are grouped together because of (a) certain likeness and common traits and who are identified by some common attributes. The homogeneity of the class of citizen is social and educational backwardness. Neither caste nor religion nor place of birth will be uniform element or common attributes to make them a class of citizens’.
584. Even when the report of first Backward Class Commission was submitted to the Government of India the memorandum prepared by it, and presented to the Parliament, emphasised that, efforts should be made, ‘to discover some criteria other than caste, which could be of practical application in determining the backward classes’. Three of the members of the Commission, ‘were opposed to one of the most crucial recommendations of the Report, that is, the acceptance of caste as a criteria for social backwardness and reservations of posts in government service on that basis’. One of the reasons given for it by the Chairman in his letter was that adopting of caste criteria was, going to have a most unhealthy effect on the Muslim and Christian sections of the nation’.
585. When Second Backward Class Commission was appointed by the President under Article 340 it was required, ‘to determine the criteria for determining the socially and educationally backward classes’ and,
“to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State”.
The order further outlined the procedure to be followed by the Commission as required by Article 340 by directing it to
“examine the recommendations of the backward classes commission appointed earlier and the considerations which stood in the way of the acceptance of its recommendations by Government.”
The Commission thus was required to undertake the exercise so as to avoid repetition of due to which the report of first Commission could not be implemented. The Commission was not oblivious of it as in paragraph 1. 17 of the report it observed,
“Though the above failings are serious, yet the real weakness of the Report lies in its internal contradictions. As stated in para 1.5 of this Chapter, three of the Members were opposed to one of the most crucial recommendations of the Report, that is, the acceptance of caste as a criterion for social backwardness and the reservation of posts in Government services on that basis.”
Yet the Commission undertook extensive exercise for ascertaining social system and opined that,
12.4 In fact, caste being the basic unit of social organisation of Hindu society, castes are the only readily and clearly “recognisable and persistent collectivities ” .
Having done so it determined social and educational backwardness in paragraph 11.23 as under :
11.23 As a result of the above exercise, the Commission evolved eleven ‘Indicators’ or ‘criteria’ for determining social and educational backwardness. These 11 ‘Indicators’ were grouped under three broad heads, i.e., Social, Educational and Economic. They are :
A. Social
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes, where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the State average.
B. Educational
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.
C. Economic
(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in Kuccha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.
(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.
11.24 As the above three groups are not of equal importance for our purpose separate weightage was given to ‘Indicators’ in each group. All the Social ‘Indicators’ were given a weightage of 3 points each, educational ‘Indicators’ were given a weightage of 2 points each, and Economic ‘Indicators’ a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational, backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.
11.25 It will be seen that from the values given to each Indicator, the total score adds up to 22. All these 11 Indicators, were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 per cent. (i.e. 11 points) or above were listed as socially and educationally backward and the rest were treated as ‘advanced’. (Emphasis supplied)
In paragraph 12.2 of the Report the Commission observed :
“As the unit of identification in the above survey is caste, and caste is a peculiar feature of Hindu society only, the results of the survey cannot have much validity for non-Hindu communities. Criteria for their identification have been given separately.”
The Commission, thus, on own showing identified socially and educationally backward class amongst Hindus on caste. The criteria for identifying non-Hindus Backward classes was stated in paragraph 12.18 :
“(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, Lobar, Darji, Badhai, etc.)”
586. Caste was thus adopted as the sole criteria for determining social and educational backwardness of Hindus. For members of other communities test of conversion from Hinduism was adopted. The Commission, even, though noticed that, the first Commission suffered from inherent defect of identifying on caste proceeded, itself, to do the same.
587. In preceding discussion it has been examined, in detail as to why caste cannot be the basis of identification of backward class. The constitutional constraint in such identification does not undergo any change because different groups or collectivity identified on caste are huddled together and described as backward class. By grouping together, the cluster of castes does not loose its basic characteristic and continues to be caste.
588. No further need be said as whether the Commission acted in terms of its reference and whether the identification was constitutionally permissible and legally sound, before it could furnish by any exercise, legislative or executive, was to be undertaken by the government.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448