Justice R.M. Sahai [1]
Article 25 is pride of our democracy. But that cannot be basis of State activities. May be caste is being exploited for political ends. Chinnappa Reddy, J. has very graphically described it in Karnataka Third Backward Class Commission (1990),
“And, we have political parties and politicians who, if anything, are realistic, fully ‘aware of the deep roots of caste in Indian society and who, far from ignoring it, feed the fire s it were and give caste great importance in the choice of their candidates for election and flaunt the caste of the candidates before the electorate. They preach against caste in public and thrive on it in private”.
597. Even Mandal Commission observed. that what, ‘caste lost on ritual front it gained on political front’. In politics caste may or may not play an important role but politics and constitutional exercise are not the same. A candidate may secure a ticket on caste considerations but if he or his agent or any person with his consent or his agent’s consent appeals to vote or refrain from voting on ground of religion, race or caste then he is guilty of corrupt practice under section 123(3) of the Representation of The People Act and his election is liable to be set aside. Thus caste, race or religion are prohibited even in political process. What cannot furnish basis for exercise of electoral right and is constitutionally prohibited from being exercised by the State cannot furnish valid basis for constitutional functioning under Article 16(4). Utilization of caste as the basis for purpose of determination of backward class of citizens is thus constitutionally invalid and even ethically and morally not permisible. Existence of caste in the past and present, its continuance in future cannot be denied but insistence that since it is being practised or observed for political purpose even though unfortunately it should be the basis for identification of backwardness in services is not only robing the Constitution of its fresh look it promised and guaranteed but would result in perpetuating a system under ugly weight of which the society had bent earlier.
Thus, (i) backwardness and inadequacy of representation in service must exist on the date the reservation is being made.
(ii) Any past injustice which entitles a group for protective discrimination must on principle of compensation or social justice be continuing on the date when reservation is, being made.
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598. ‘It is easier to give power but difficult to give wisdom’. Dr. Ambedkar quoted this Burke’s thought in the Constituent Assembly Debate and exhorted ‘let us prove by our conduct that we have not only the power but also the wisdom to carry with us all sectors of the country which is bound to lead us to unity’. How to effectuate this wisdom ? For Article 16(4) how to determine who can be legally considered to be backward class of citizens ? The answer is simple. By adopting, constitutionally, permissible methodology of identification irrespective of their race, religion or caste. The difficulty, however, arises in finding out the criteria. Although the work should normally be left to be undertaken by the State as the courts are ill equipped for such exercise due to lack of data, necessary expertise and relevant material but with’ development of role of courts from mere, superintend and supervise’ to legitimate constitutional affirmative decision, this court is not only duty bound but constitutionally obliged to lay down principles for guidance for those who are entrusted with this responsibility, with a sense of duty towards the country as the occasion demands never more than now, but with remotest intention to interfere with legislative, or executive process. What the Nation should remember is that the basic values of constitutionalism guaranting judicial independence is to enable the courts to discharge their duty without being guided by any philosophy as judicial interpretation,
“gives better protection than the political branches to the weak and outnumbered, to minorities and unpopular individuals, to the inadequately represented in the political process.” A. Cox – The Court and the Constitution.
599. Before doing so it is necessary to be stated, at the outset, that identification of backward classes for purposes of different States may not furnish safe and sound basis for including all such group or collectivity for reservation in services under the Union Reason is that local conditions play major part in such exercise. For instance habitation in hills of U. P. was upheld as valid basis for identifying backwardness. Same may not be true of residents of hills in other States. Otherwise entire population of Kashmir may have to be treated as backward. In Kerala State most of the Muslims are identified as backward. Can this be valid basis for other States. Even the Mandal Commission noticed that some castes backward in one State are forward in others. If State list of every State is adopted as valid for Central services it is bound to create confusion. One of the apparent abuse inherent in such inclusion is that it is apt to encourage paper mobility of citizens from a State where such class or caste is not backward to the State where it is so identified. This apart such inclusion may suffer from constitutional infirmity. Many groups or collectivity in different States are continuing or have been included in the State list due to various considerations political or otherwise. State of Karnataka is its best example. Commission after commission beginning from Gowda Commission, Venkataswamy Commission and Havanur Commission despite having found that some of the castes ceased to be backward they continue in the list due to their political pressure and economic power. Ghanshyam Shah ‘Economic and Political Weekly’ Vol. 26 (199 1) p. 601, in ‘Social Backwardness and Politics of Reservations’, has pointed out, ‘Among the sudras there are peasant castes, artisan castes and nomadic castes. Subjective perception of one’s position in the ‘varna’ system varies and changes from time to time, place to place and context to context. For instance, the Patidars of Gujarat were considered sudras a few decades ago, but now they call themselves vaishyas, and are ackowledged as such by others. It is significant that they are not have-nots. Similar is the case of Vokkaligas and Lingayats of Karnataka, Reddies and Kammas of Andhra Pradesh, Marathas of Maharashtra and to some extent Yadavas of Bihar.’ Yet these castes or group have been ‘identified as backward class in their State. Whether, such inclusion on political, economic and social condition is justified in State list or not but inclusion of a group or collectivity in list of socially and educationally backward classes, which is a term narrower and different than backward class for services under the Union without proper identification only on State list may not be valid. For services under the Union, therefore, some principle may have to be evolved which may be of universal application to members of every community and which may be adopted by States, as well, after adjusting it with prevalent local conditions.
600. Ours is a country comprising of various communities. Each community follows different religion. Centuries of historical togetherness has influenced each other. Caste which is peculiar to Hindus infiltrated even amongst Muslims, Christians, Sikhs or others although it has no place in their religion. The Encyclopedia Americans International Edition describes the development thus
“All important communities, including the Muslims, Christians, and Sikhs, have some sort of caste scheme. These schemes are patterned after the Hindu system, since most of these people originally came from Hindu stock. The large-scale conversions that have been going on for centuries have modified Indian caste society. Thus traditional Hindu, commensal and connubial rituals and emphasis on inherited social status or rank though generally rejected in the Islamic or Christian religious ethic, nevertheless operate on social plain in these societies in India. In India social rites and customs vary from region to region rather than from religion to religion. Among the Muslims, the Sayids, Sheikh, Pathan, and Momin, among others, function as exclusive endogamous caste groups. The Christians are divided into a number of groups, including the Chaldean Syrians, Jacobite Syrians, Latin Catholics` Marthom Syrians, Syrian Catholics,and Protestants. Each of these groups practices endogamy. Among the Catholics, the Syrian Romans and the Latin Romans generally do not intermarry. The Christians have not wholly discarded the idea of food restrictions and pollution by lower caste members. When lower caste Hindus were converted to Christianity a generation or two ago, they were not allowed to sit with high caste Christians in church, and separate churches were erected for them.”
601. On the social plain therefore there has been lack of mobility from one group to other. Amongst Hindus it has been more marked. Inter se discrimination has been worse. Untouchables prior to 1950 have been victims of social persecutions not only by the twice born but even the so called intermediate backward classes. But what appears to be common in each community is that the caste divide is more or less occupational based. A washerman or a barber, a milkman or an agriculturist, are all known among Hindus by castes and amongst others by occupation. In fact they are all occupational. Very genesis of Chatur Varna was occupational.
“According to Kroeber, castes are special form of social classes, ‘which in tendency at least are present in every society. Castes differ from social classes, however, in that they have -emerged into social consciousness to the point that custom and law attempt their rigid and permanent separation from one another’ …..’ The jatis which developed later and which continued to grow in number have their economic significance; they are for the most part occupational groups and, in the traditional village economy, the caste system largely provides the machinery for the exchange of goods and services.” 85. The Caste System in India by Rajendra Pandey, page 8
But these rigid stratifications are breaking today. The social inter se barriers are rapidly disappearing. Values are fast changing. In fact many of the backward classes as observed by Sri Naik in his separate note to the Mandal Commission Report ‘co-existed since times, immemorial with upper castes and had therefore some scope to imbibe better association and what all its connotes’. Take for instance the list of the ‘Intermediate Backward Class’ where traditional occupation, according to Sri Naik has been, ‘agriculture, market gardening, betel-leaves growers, partoral activities, village industries like artisans, tailors, dyers and weavers, petty business-cum-agricultural activities, heralding, temple service, toddy selling, oil mongering, combating, astrology etc. etc. Their backwardness has been primarily economic or educational. Mobility, too, occupational or professional has not been very rigid. An agriculturist or an artisan, a dyer or weaver had the occupational freedom of moving in any direction. Consideration for marriage or social customs may be different. But that prevails in every strata of society. One sect of a caste or community Hindu or Muslim, or even Christian forward or backward does not prefer marrying in another sect what to say of caste. But these considerations are not relevant for identifying backward class for public employment. Lack of education, at least among so called intermediate backward classes, was more due to personal violation than social ostracisation. historical social backwardness has already been taken care of by providing reservation to SC/ST and empowering President to include any group or collectivity found to be suffering from such disability. Same Yardstick cannot be applied for socially and educationally backward class for whom the President has been empowered to appoint a Commission and who only after identification are to be deemed to be included as SC and ST by virtue of Article 338(10). From the preceding discussion it is clear that identification of such class cannot be caste based. Nor it can be founded, only, on economic considerations as ‘mere poverty’ Supra (45) cannot be the test of backwardness. With these two negative considerations stemming out of constitutional constraints two positive considerations, equally important and basic in nature flow from principle of constitutional construction one that the effort should, primarily, be directed towards finding out a criteria which must apply uniformly to citizens of every community, second that the benefit should reach the needy. Various combinations excluding and including caste as relevant consideration have been discussed in different decisions which need not be mentioned as occasion to examine social and educational backwardness in public services and that also in union services never arose.
602. In sub-paragraph (ii) of paragraph 12.8 extracted earlier the Mandal Conclusion recommended occupational identification for non-Hindus if the community was traditionally known to carry on the herediary occupation of their counterpart amongst Hindus and included in the test of OBC, The Commission thus recognised occupational divide among Hindus. If occupation amongst Hindus can be basis for identification of backwardness among non-Hindus then why cannot it furnish basis for identification amongst Hindus itself.
603. Ideal and wise method, therefore, would be to mark out various occupations, which on the lower level in many cases amongst Hindus be the caste itself. Find out their social acceptability and educational standard. Weigh them in balance of economic conditions. Result would be backward of citizen needing genuine protective brella. Group or collectivity which may thus emerge may be members of one or the other community. Advantage of occupational based identification would be that it shall apply uniformly irrespective of race, religion and caste. Reason for accepting occupation based identification is that prior to 1950 Sudras amongst Hindus were all those who were not twice born., Amongst them there was vertical and occupational divisions. Similar hierarchy existed amongst Muslims. “12.13 There is a notion of hierarchy among the Muslims, though it is hard to say how far the criterion of the ranking among them can be said to conform to the Hindu model ……It is clear that castes exist as a basis of social relations amongst them (Muslims) but its form has been greatly weakened and modified as it differs from the Hindu model in certain details.’ – Dr. Imtiaz Ahmed.
Same is true of other communities. “12.11 There is no doubt that social and educational backwardness among non-Hindu communities is more or less of the same order as among Hindu communities. Though caste system is peculiar to Hindu society yet, in actual practice, it also pervades the non-Hindu communities in India in varying degrees.”
Sri Naik narrated a list of, ‘intermediate backward classes” and ‘depressed backward classes’. It may not be exhaustive. But it is indicative that different categories of persons are, normally, known by occupation they carry. ‘Castes, therefore, are special form of classes which in tendency are present in every society’. Encyclopaedia of Social Sciences Vol. 3
It was said by Lord Bryce long back for America that clases may not be divided, for political purposes into upper and lower and richer and poorer, ‘but according to their respective occupation they follow’. ‘Equality’ by R. H. Tawney
Class according to Tawney may get formed due to various reasons, ‘War, the institution of private property, biological characteristic, the division of labour’. And, ‘Even today, indeed though less regularly than in the past class tends to determine occupation rather than occupational class’. So is the case in our society. It is immaterial if caste has given rise to occupation or vice versa. In either case occupation can be the best starting point constitutionally permissible and legally valid for determination of backwardness.
604. For instance, priests either in Hindus or Mullahs in Muslims or Bishops or Padris amongst Christians or Granthi in Sikhs are considered to be at the top of hierarchal system. They cannot be considered to be backward in any community not because of their religion but the nature of occupation. Similarly the untouchables became outcaste due to nature of the job they performed. On lower level whether it is barber or tailor. washerman or milkman, agricultural class or artisan they are a group or class who can be identified in. any community. Identifying them by caste may mean that a Muslim or Christian who for generations has been carrying on same occupation as his counterpart amongst Hindus cannot be identified as backward class. And if it is done then for Hindus it would be caste based whereas for others occupational. How far that would be legal and constitutional is, one matter but if the Yardstick of occupation is applied to every community the identification would be uniform without exclusion of any. For instance weavers or washerman. They may be, both Hindus and Muslims. It would be unfair to include Hindu washerman and exclude Muslim washerman.
605. Having adopted occupation as the starting point next step should be to ascertain the social acceptability. A lawyer, a teacher and a doctor of any community whether he is a teacher of a primary school or University, a Vaid or Hakim practising in the village or a professor in Medical college always commands social respect. Similarly social status amongst those who perform lower job depends on the nature of occupation. A person carrying on scavenging became an untouchable whereas others who were as lower as untouchable in the order became depressed. For instance cobbler. Same did not apply to those who carried on better occupation, person having landed property’ and carrying on agricultural occupation did not in social hierarchy command lesser respect than the one carrying on same occupation belonging to higher caste. But backwardness should be traditional. For instance only those washerman or tailor should be considered backward who have been carrying on this occupation for generations and not the modern dry cleaner or fashion tailors. If the collectivity satisfies both the test then apply the test of education. What standard of education should be adopted should be concern of the State. Existence of, both, that is social and educational backwardness for a group or collectivity, Is indicated by Article 15(4) itself. Use of such expression was purposive. Mere educational or social backwardness would not have been sufficient as it would have enlarged the field thus frustrating, the very purpose of the amendment. That is why it was observed in Balaji (AIR 1963 Supreme Court 649) that the concept of backwardness was intended, to be relative in the sense that any class who is backward in relation to the most advanced classes should be included in it. And the purpose of amendment could be achieved if backwardness under Article 15(4) was understood as comprising of social and educational backwardness. It is not their social or educational, but it is both social and educational’. Reading the expression disjunctively and permitting inclusion of either socially or educationally backward class of citizens would defeat the very purpose. For instance some of the so called higher castes who by nature of their occupation or caste have been accepted by society to be socially advanced may enter because of the group or collectivity having been educationally backward. Many agricultural occupationists both in South and North have chosen to remain educationally backward even though by virtue of their landed property they have always compared to any higher class. Can such persons be permitted to take benefit of such benign measures. Not on the language, purpose and objective of these provisions.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448