Justice R.M. Sahai [1]
756. In paragraphs 33 to 42, we have noticed how this court has been grappling with the problem over the years. In Venkataraman’s case (AIR 1951 Supreme Court 229), a Seven Judge Bench of this court noticed the list of backward classes mentioned in Schedule III to the Madras Provincial and Subordinate Service Rules, 1942, as also the fact that backward classes were enumerated on the basis of caste/race. It found no objection thereto though in Champakam (AIR 1951 Supreme Court 226) rendered by the same Bench and on the same day it found such a classification bad under-Art. 15 on the ground that Article 15 did not contain a clause corresponding to clause (4) of Article 16. In Venkataraman’s case this court observed that in respect of the vacancies reserved for backward classes of Hindus, the petitioner (a Brahmin) cannot have any claim inasmuch as “those reserved posts (were reserved) not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such post in favour of a backward class of citizens.” The writ petition was allowed on the ground that the allocation of vacancies to and among communities other than Harijans and backward classes of Hindus cannot be sustained in view of clauses (1) and (2) of Article 16.
757. Though Balaji was not a case arising under Article 16(4), what it said about Article 15(4) came to be accepted as equally good and valid for the purpose of Article 16(4). The formulations enunciated with respect to Article 15(4) were, without question, applied and adopted in cases arising under Article 16(4). It is, therefore, necessary to notice precisely the formulations in Balaji (AIR 1963 Supreme Court 649) relevant in this behalf. Gajendragadkar, J. speaking for the Constitution Bench found, on an examination of the Nagangewda Committee Report, “that the Committee virtually equated the class with the castes.” The learned Judge then examined the scheme of Article 15, the meaning of the expression class, the importance of caste in the Hindu social structure and observed, while dealing with social backwardness:
“Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens……Though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves.”
758. The learned Judge further proceeded to hold :
“Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, the test would inevitably break down in relation to many sections of Indian society which do not recognise castes in the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Article 15(4). It is not unlikely that ‘in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or class of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is in the ultimate analysis the result of poverty to a very large extent….. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.”
759. The learned Judge stressed the part played by the occupation, conventional beliefs and place of habitation in determining the social backwardness. Inasmuch as the identification of backward classes of Nagangowda Committee was based almost solely on the basis of caste, it was held to be bad.
760. The criticism of the Respondents’ counsel against the Judgment runs thus : While it recognises the relevance and significance of the caste and the integral connection between caste, poverty and social backwardness, it yet refuses to accept caste as the sole basis of identifying socially backward classes, partly for the reason that castes do not exist among non-Hindus. The judgment does not examine whether caste can or cannot form the starting-point of process of identification of socially backward classes. Nor does it consider the aspect how does the non-existence of castes among non-Hindus (assuming that the said premise is factually true) makes it relevant in the case of Hindu, who constitute the bulk of the country’s population. There is no rule of law that a test or basis adopted must be uniformly applicable to the entire population in the country as such.
761. Before proceeding further it may be noticed that Balaji was dealing with Article 15(4) which clause contains the qualifying words “socially and educationally” preceding the expression “backward classes”. Accordingly, it was held that the backwardness contemplated by Article 15(4) is ‘both social and educational. Though, clause (4) of Article 16 did not contain any such qualifying words, yet they came to be read into it. In Janaki Prasad Parimoo (AIR 1973 Supreme Court 930), Palekar, J. speaking for a Constitution Bench, took it as “well-settled that the expression ‘backward classes’ in “Art. 16(4) means the same thing as the expression any socially and educationally backward class of citizens’ in Art. 15(4)”. More of this later.
762. In Minor P. Rajendran, (AIR 1968 Supreme Court 1012), the caste vis-a-vis class debate took a sharp turn. The ratio in this case marks a definite and clear shift in emphasis. (We have dealt with it at some length in para 36). Suffice it to mention here that in this decision, it was held that “a caste is also a class of citizens and if the caste as a whole is socially and educationally 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)……It is true that in the present case the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was a sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens. “This principle was reiterated in Peeriakarupan (AIR 1971 Supreme Court 2303), Balram (AIR 1972 Supreme Court 1375) and Trilokinath-11 (AIR 1969 Supreme Court 1). We have referred to these decisions at some length in paras 38 and 39. In Peeriakaruppan, Hegde, J. concluded, “a caste has always been recognised as a class.”
763. This issue was gone into in some detail in Vasant Kumar (AIR 1985 Supreme Court 1495), where all the five Judges constituting the Constitution Bench expressed different opinions. Chandrachud, C.J. did not express himself on this aspect but other four learned Judges did. Desai, J. recognised that “in the early stages of the functioning of the Constitution, it was accepted without dissent or dialogue that caste furnishes a working criterion for identifying socially and educationally backward class of citizens for the purpose of Article 15(4). “He also recognised that “there has been some vacillation on the part of the judiciary on the question whether the caste should be the basis for recognising the backwardness.” After examining the significance of caste in the Indian social structure, the learned Judge observed :
“Social hierarchy and economic position exhibit an indisputable mutuality. The lower the caste, the poorer its member. The poorer the members of a caste, the lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power weilded by an individual or class in rural society. Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hesitation, say that if poverty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a person’s caste.”
764. The learned Judge also recognised that caste system has even penetrated other religions to whom the practice of caste should be anathema. He observed :
“So sadly and oppressively deep-rooted is caste in our country that it has cut across even the barriers of religion. The caste system has penetrated other religious and dissentient Hindu sects to whom the practice of caste should be anathema and today we find that practitioners of other religious faiths and Hindu dissentients are sometimes as rigid adherents to the system of caste as the conservative Hindus. We find Christians harijans, Christian Madars, Christian Reddys, Christian Kammas, Mujbi Sikhs. etc. etc. In Andhra Pradesh there is a community known as Pinjars or Ludekulas (known in the North as ‘Rui Panjane Wala’) : (professional cotton-beaters) who are really Muslims but are treated in rural society, for all practical purposes, as a Hindu caste. Several other instances may be given.”
765. Having thus noticed the pernicious effects of the caste system, the learned Judge opined that the only remedy in such a situation is to devise a method for determining social and educational backward classes without reference to caste. He stressed the significance of economic criterion and of poverty and concluded that a time has come when the economic criterion alone should be the basis for identifying the backward classes. Such an identification has the merit of advancing the secular character of the nation and will tend towards nullifying caste influence, said the learned Judge.
766. Chinnappa Reddy, J. dealt with the question at quite some length. The learned Judge quoted Max Weber, according to whom the three dimensions of social inequality are class, status and power – and stressed the importance of poverty in this matter. Learned Judge opined that caste system is closely entwined with economic power. In the words of the learned Judge :
“Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hesitation, say that if poverty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a person’s caste.”
767. The learned Judge too recognised the percolation of caste system into other religions and concluded his opinion in the following words :
“Poverty, caste, occupation and habitation are the principal factors which contribute to brand a class as socially backward …… But mere poverty it seems is not enough to invite the Constitutional branding, because of the vast majority of the people of our country are poverty-struck but some among them are socially and educationally forward and others backward…..True, a few members of those caste or social groups may have progressed far enough and forged ahead so as to compare favourably with the leading forward classes economically, socially and educationally. In such cases, perhaps an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserve it…. Class poverty, not individual poverty, is therefore the primary test….. Once the relevant conditions are taken into consideration and the backwardness of a class of people is determined, it will not be for the court to interfere in the matter. But, lest there be any misunderstanding, judicial review will not stand excluded.”
768. A.P. Sen, J. dealt with this question in a short opinion. According to him :
“……..The predominant and the only factor for making special provisions under Article 15(4) or for reservation of posts and .appointments under Article 16(4) should be poverty, and caste or a sub-caste or a group should be used only for purposes of identification of persons comparable to Scheduled Castes or Scheduled Tribes, till such members of backward classes attain a state of enlightenment and there is eradication of poverty amongst them and they become equal partners in a new social order in our national life.”
769. E. S. Venkataramiah, J. too dealt with this aspect at some length. After examining the origins of the castes and the ugly practices associated with it, the learned Judge opined
“An examination of the question in the background of the Indian social conditions shows that the expression ‘backward classes’ used in the Constitution referred only to those who were born in particular castes, or who belonged to particular races or tribes or religious minorities which were backward.”
770. The learned Judge then referred to the debates in Constituent Assembly on draft Article 10 and other allied articles, including the speech of Dr. Ambedkar and observed thus :
“The whole tenor of discussion in the ‘Constituent Assembly pointed to making reservation for a minority of the population including Scheduled Castes and Scheduled Tribes which were socially backward. During the discussion, the Constitution (First Amendment) Bill by which Article 15(4) was introduced, Dr. Ambedkar referred to Article 16(4) and said that backward classes are ‘nothing else but a collection of certain castes. This statement leads to a reasonable inference that this was the meaning which the Constituent Assembly assigned to classes’ at any rate so far as Hindus were concerned.”
771. The learned Judge also supported the imposition of a means test as was done by the Kerala Government in Jayasree (K. S. Jayasree v. State of Kerala, (1977)(1) SCR 194).
772. The above opinions emphasise the integral, connection between caste, occupation poverty and social backwardness. They recognise that in the Indian context, lower castes are and ought to be treated as backward classes. Rajendran (AIR 1968 Supreme Court 1012) and Vasant Kumar (AIR 1985 Supreme Court 1495) (opinions of Chinnappa Reddy and Venkataramiah, JJ.) constitute, important milestones on the road to recognition of relevance and significance of caste in the context of Article 16(4) and Article 15(4).
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448