Justice R.M. Sahai [1]
786. We may now turn to Constituent Assembly debates with a view to ascertain the original intent underlying the use of words “backward class of citizens”. At the outset we must clarify that we are not taking these debates or even the speeches of Dr. Ambedkar as conclusive on the meaning of the expression “backward classes.” We are referring to these debates as furnishing the context in which and the objective to achieve which this phrase was put in clause (4). We are aware that what is said during these debates is not conclusive or binding upon the court because several members may have expressed several views, all of which may not be reflected in the provision finally enacted. The speech of Dr. Ambedkar on this aspect, however, stands on a different footing. He was not only the Chairman of the Drafting Committee which inserted the expression “backward” in draft Article 10(3) (it was not there in the original draft Article 10(3)), he was virtually piloting the draft Article. In his speech, he explains the reason behind draft clause (3) as also the reason for which the Drafting Committee added the expression “backward” in the clause. In this situation, we fail to understand how can anyone ignore his speech while trying to ascertain the meaning of the said expression. That the debates in Constituent Assembly can be relied upon as an aid to interpretation of a constitutional provision is borne out by a series of decisions of this Court. (See Madhu Limaye, AIR 1969 Supreme Court 1014 at 1018; Golaknath v. State of Punjab, AIR 1967 Supreme Court 1643 at p. 1657 (Subba Rao, CJ); opinion of Sikri C.J., in Union of India v. H.S. Dhillon, (1972) 2 SCR 33 and the several opinions in Keshavananda Bharati (1973) 4 SCC 225 where the relevance of these debates is pointed out, emphasing at the same time, the extent to which and the purpose for which they can be referred to). Since the expression “backward” or “backward class of citizens” is not defined in the Act, reference to such debates is permissible to ascertain, at any rate, the context, background and objective behind them. Particularly, where the Court wants to ascertain the ‘original intent’ such reference may be unavoidable.
787. According to Dr. Ambedkar (his speech is referred in para 28 and need not be reproduced here), the Drafting Committee was of the opinion that such a qualifying expression was necessary to indicate that the classes of citizens for whom reservations were to be made are those “communities which have not had so far representation in the State.” It was also of the opinion that without such a qualifying expression (like backward’) the “exemption made in favour of reservation will ultimately eat up the rule altogether”. ‘This was also the opinion of Sri K. M. Munshi, who too was a member of the Drafting Committee. In his speach (referred to in para 27) he explains why the said qualifying expression “backward” was inserted by the Drafting Committee in draft Article 10(3). His speech, in so far as it is relevant on this aspect, has been quoted in extenso in para 28 and need not be repeated here.
788. In our opinion too, the words “class of citizens – not adequately represented in the services under the State” would have been a vague and uncertain description. By adding the word “backward” and by the speeches of Dr. Ambedkar and Sri K. M. Munshi, it was made clear that the “class of citizens……not adequately represented in the services under the State” meant only those classes of citizens who were not so represented on account of their social backwardness.
789. Reference can also be made in this context to the speech of Dr. Ambedkar in the Parliament at the time the First Amendment to the Constitution was being enacted. It must be remembered that the Parliament which enacted the First Amendment was the very same Constituent Assembly which framed the Constitution and Dr. Ambedkar as the Minister of Law was piloting the Bill. He said that backward classes “are nothing else but a collection of certain castes”. (the relevant portion of his speech is referred to in para 32) and that it was for these backward classes that Article 15(4) was being enacted.
790. Pausing here, we may be permitted to make a few observations. The speeches of Dr. Ambedkar may have to be understood in the context of the then obtaining ground realities viz. (a) Hindus constituted 84% of the total population of India. And among Hindus, caste discrimination was unfortunately an unpleasant reality; (b) caste system had percolated even the Non-Hindu religions – no doubt to varying extents. Particularly among Christians in Southern India, who were converts from Hinduism, it was being practised with as much rabidity as it was among Hindus. (This aspect has been stressed .by the Mandal Commission (Chapter 12 paras 11 to 16) and has also been judicially recognised. (See, for instance, the opinions of Desai and Chinnappa Reddy, JJ. in Vasant Kumar (AIR 1985 Supreme Court 1495)). Encyclopaedia Britannica-II-Micropaedia refers to existence of castes among Muslims and Christians at pages 618 and 619. Among Muslims, it is pointed out, a distinction is made between ‘Ashrafs’ (supposed to be descendants of Arab immigrants) and non-Ashrafs (native converts). Both are divided into sub-groups. Particularly, the non-Ashrafs, who are converts from Hinduism, it is pointed out, practice caste system (including endogamy)” in a manner close to that of their Hindu counter-parts.” All this could not have been unknown to Dr. Ambedkar, the keen social scientist that he was.
(c) It is significant to notice that throughout his speech in the Constituent Assembly, Dr. Ambedkar was using the word “communities” (and not ‘castes’) which expression includes not only the castes among the Hindus but several other groups. For example, Muslims as a whole were treated as a backward community in the princely State, of Travancore besides several sections/denominations among the Christians. The word “community” is clearly wider than “caste” and “backward communities” meant not only the castes – wherever they, may be found – but also other groups, classes and sections among the populace.
791. Indeed, there are very good reasons why the Constitution could not have used the expression “castes” or “caste” in Article 16(4) and why the word “class” was the natural choice in the context. The Constitution was meant for the entire country and for all time to come. Non-Hindu religions like Islam Christianity and Sikh did not recognise caste as such though, as pointed out hereinabove, castes did exist even among these religions to a varying degree. Further, a Constitution is supposed to be a permanent document expected to last several centuries. It must surely have been envisaged that in future many classes may spring-up answering the test of backwardness, requiring the protection of, Article 16(4). It, therefore, follows that from the use of the word “class” in Article 16(4), it cannot be concluded either that “class” is antithetical to “caste” or that a caste cannot be a class or that a caste as such can never be taken as a backward class of citizens. The word “class” in Article 16(4), in our opinion, is used in the sense of social class – and not in the sense it is understood in Marxist jargon.
792. In Rajendran (AIR 1968 Supreme Court 1012), Trilokinath-II (AIR 1969 Supreme Court 1), Balram (AIR 1972 Supreme Court 1375) and Peerikarupan (AIR 1971 Supreme Court 2303), this reality was recognised and given effect to, notwithstanding the fact that they had to respect and operate within the rather qualified formulation of Balaji (AIR 1963 Supreme Court 649).
793. For the sake of completeness, we may refer to a few passages from Vasant Kumar (AIR 1985 Supreme Court 1495) to show what does the concept of ‘caste’ signify ? D.A. Desai, J. defines and describes “caste” in the following terms (Para 22 of AIR) :
“What then is a caste ? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste/system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system……There are four essential features of the caste system which maintained its homo hierarchicus character : (1) hierarchy (2) commensality : (3) restrictions on marriage; and (4) hereditary occupation. Most of the caste are endogamous groups. Intermarriage between two groups is impermissible. ‘But ‘Pratilom’ marriages are not wholly unknown.”
794. Venkataramiah, J. also defined “caste” in practically the same terms. He said (Para 109 of AIR) :
“A caste is an association of families which practise the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste……..A caste is based on various factors. Sometimes it may be a class, a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family. Certain ideas of ceremonial purity are peculiar to each caste …… Even the choice of occupation of members of castes was predetermined in many cases, and the members of particular caste were prohibited from engaging themselves in other types of callings, profession or occupations. Certain occupations were considered to be degrading or impure.”
795. The above material makes it amply clear that a caste is nothing but a social class a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogeneous class. Endogamy is its main characteristic. Its social status and standing depend upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have gone to cities or even abroad but when they return – they do, barring a few exceptions – they go into the same fold again. It doesn’t matter if he has earned money. He may not follow that particular occupation. Still, the label remains. His identity is not changed. For the purposes of marriage, death and all other social functions, it is his social class – the caste – that is relevant. It is a matter of common knowledge that an overwhelming majority of doctors, engineers and other highly qualified people who go abroad for higher studies or employment, return to India and marry a girl from their own caste. Even those who are settled abroad come to India in search of brides and bridegrooms for their sons and daughters from among their own caste or community. As observed by Dr. Ambedkar, a caste is at an enclosed class and it was mainly these classes the Constituent Assembly had in mind – though not exclusively – while enacting Article 16(4). Urbanisation has to some extent broken this caste-occupation nexus but not wholly. It one sees around himself, even in towns and cities, a barber by caste continues to do the same job – may be, in a sho (hair dressing saloon). A washerman ordinarily carries on the same job though he may have a,laundry of his own. May be some others too carry on the profession of barber or washerman but that does not detract from the fact that in the case of an overwhelming majority, the caste-occupation nexus subsists. In a rural context, of course, a member of barber caste carrying on the occupation of a washerman or vice versa would indeed be a rarity it is simply not done. There, one is supposed to follow his caste occupation, ordained for him by his birth. There may be exceptions here and there, but we are concerned with generality of the scene and not with exceptions or aberrations. Lowly occupation results not only in low social position but also in poverty; it generates poverty. Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly apparent; in urban centres, there may be some dilution. But since rural India and rural population is still the overwhelmingly predominant fact of life in India, the reality remains. All the decisions since Balaji speak of this ‘cast-occupation-poverty’ nexus. The language and emphasis may vary but the theme remains the same. This is the stark reality notwithstanding all our protestations and abhorrence and all attempts at weeding out this phenomenon. We are not saying it ought to be encouraged, It should not be. It must be eradicated. That is the ideal – the goal. But any programme towards betterment. of these sections-classes of society and any programme designed to eradicate this evil must recognise this ground reality and attune its programme accordingly. Merely burying our heads in the sand – Ostrich-like – wouldn’t help. One cannot fight his enemy without recognizing him. The U. S. Supreme Court has said repeatedly, if race be the basis of discrimination – past and present – race must also form the basis of redressal programmes though in our constitutional scheme, it is not necessary to go that far. Without a doubt, an extensive restructuring of socio-economic system is the answer That is indeed the goal, as would be evident from the preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect of equality emphasised in Article 16(4) – equality of opportunity in public employment and a special provision in favour of backward class of citizens. to enable them to achieve it.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448