THOMMEN, J.1
269. The President of India issued the Constitution (Scheduled Castes) Order, 1950 relating to the States, and the Constitution (Scheduled Castes) Union Territories Order, 1951[1] relating to the Union Territories. Para (2) of the 1950 Order speaks of ‘castes, races or tribes which are to be deemed Scheduled Castes in the territories of the States mentioned in the Order”. Para(3) of the Order (as amended by Act 108 of 1976 w.e.f. 27-7-1977) provides “notwithstanding anything contained in para(2), no person professing a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of the Scheduled Castes”[2].
270. The 1950 Order of the President (as amended) shows that in the territories of the States mentioned in the Order no person who is not a Hindu or a Sikh or a Buddhist can be regarded as a member of the Scheduled Castes. Article 15(4) speaks of ‘socially and educationally backward classes of citizens’ and ‘the Scheduled Castes and the Scheduled Tribes’ while Article 16(4) speaks only of ‘any backward class of citizens’. The ‘backward class’ mentioned in Article 16(4) is a synonym for the classes mentioned in Article 15(4). These two provisions read with the President’s Order of 1950 (as amended in 1976) show that the benefit of Article 15(4) and Article 16(4) extends to the Scheduled Castes (which expression is confined to those professing the Hindu, the Sikh or the Bladdhist religion) and the Scheduled Tribes as well as the backward classes of citizens who must necessarily be such backward classes of citizens who would have, but for their not professing the Hindu, the Sikh or the Buddhist religion, qualified to be notified as members of the Scheduled Castes. This means, all those depressed classes of citizens who suffered the odium and isolation of untouchability prior to their conversion to other religions and whose backwardness continued despite their conversion come within the expression ‘backward classes of citizens’ in Articles 15(4) and 16(4). Untouchability is a humiliating and shameful malady caused by deep-rooted prejudice which does not disappear with the change of faith. To say that it does would imply that faith is the ultimate cause of untouchability. This is, of course, not true. If backwardness caused by historical discrimination and its consequential disadvantages are the reasons for reservation the Constitution mandates that all backward classes of citizens, who are the victims of the continuing ill effects of prior discrimination, whatever be their faith or religion, or whether or not they profess any religion, receive the same benefits which are accorded to the Scheduled Castes and the Scheduled Tribes. Backward class is composed of persons whose backwardness is in degree and nature comparable to that of the Scheduled Castes and the Scheduled Tribes, whatever be their religion. There can be no doubt about the identity of the Scheduled Castes and the Scheduled Tribes. Nor can there be any doubt about the identity of backward classes other than the Scheduled Castes and the Scheduled Tribes, if this identifying characteristic, bearing the stamp of prior discrimination and its continuing ill effects, is borne in mind.[3]
[1] The 1951 Order relating to the Union Territories, however, regards only persons professing Hindh or Sikh religion as members of the Scheduled Castes and does not include those professing Buddhist or any other religion.
[2] See Manual of Election Law, Vo. I (1991) p. 141.1
[3] M.R. Balaji v. State of Mysore, (1963) Supp 1 SCR 439, 458; State of Uttar Pradesh v. Pradip Tandon, (1975) 2 SCR 761, 766; Janki Prasad Parimoo v. State of Jammu & Kashmir, (1973) 3 SCR 236, 252.
- This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448 ↩︎