In its recent judgment, Supreme Court gave the decision in favour of sub-classification of castes in reservation matters. In his judgment, while considering the issue of Sub-Classification of Castes, Justice Pankaj Mithal wrote-
Man/human as rightly understood is a social animal and has to live in a society. An ideal form of society is one which progresses on merit or where merit alone prevails. This is evident from Articles 14 and 15 of the Constitution which provides for equality before law and that State shall not discriminate on grounds of religion, race, caste, sex or place of birth.
However, no society can exist in its ideal form as all citizens are not alike. The basic needs of everyone are different and have to be taken into account to carry the society forward. Therefore, there is pressing need to consider the social, economic and political need of all persons or classes of persons.
In the context of India, the trinity of social, economic and political justice has to be balanced and to promote social justice, provisions have to be made for the upliftment of the so-called marginalized citizens or the depressed classes of persons who later came to be known as backward class of persons and scheduled castes as well as scheduled tribes etc. It is to achieve the above social objective of bringing every citizen or a class of citizen on equal level and at par in law that provision for reservation came to be made in the Constitution.
The provision for reservation for any class of persons at first sight may appear to be anti-merit but if weighed on the scales of social justice, it is imperative.
The ramifications of reservation
Notwithstanding, the success or failure of the reservation policy, one thing is for sure that it has burdened the Judiciary at all levels specially the High Courts and the Supreme Courts with enormous litigation which could have been avoided if a robust reservation policy with a vision would have been envisaged under the constitutional provisions in the very beginning instead of making piecemeal changes.
It is a matter of experience that every kind of process of selection and appointment in the government services and admission at higher level has come to be challenged before the courts inter-alia on the grounds of misapplication of the rule of reservation. Most of the times, the appointments and admissions get stuck up for years on account of litigation. This has caused enormous delay in the recruitment process and the vacancies remaining unfilled for long, giving rise to stop-gap/ad-hoc appointments resulting in further litigation.
It is also noticeable that enough time and energy has been spent by all the three wings of the State in streamlining the process of reservation and to evolve a flawless mechanism for implementing the reservation policy but still the non-visionary approach to handle the upliftment of the backward castes has created more difficulties rather than ironing them out.
It is a matter of record that in pro-reservation agitations and anti-reservation agitations, the peace and tranquillity of the entire country, at times, stood disturbed. Specially, during the anti-Mandal Commission agitation somewhere in 1990, most of the States witnessed large scale disturbances. The turmoil so created by such agitations and demonstrations particularly in the months of August-November of 1990 is the ample indication of the wide spread violence.
It may not be out of context to point out that apart from the anti-Mandal Commission violence, the country witnessed similar violence in the year 2006 when the students of IITs and AIIMS came out on the streets opposing reservation. Also, there was violence in Maharashtra against the Maratha reservation, to talk about the few. After independence, a special provision was made in the Directive Principles of State Policy to provide compulsory primary education to all children within a period of 10 years but the target could not be achieved even after 77 years of independence.
The Central Government, few years back, in order to provide free education to children enacted Right to Education Act, 2009. The aforesaid Act proved to be a very weak legislation and have not been able to provide primary education to one and all irrespective of the caste, creed, race, religion and sex as most of the children of the so-called depressed class either fail to attend schools or drop out after one and two years of education. There is no compulsion to give education to such children. The policy of reservation is applicable at the higher level only and for the purposes of employment.
Thus, depriving such children or the drop outs, at the primary level of the benefit of reservation or upliftment in any other manner, as a result of which these children ultimately remain the most backward of the backwards.
The statistics proves that the deprived and the marginalized persons have not been able to achieve the benefit of reservation which is permissible at higher level as about 50% of the students from the most backward classes drop out of school before Class-V and 75% drop out before Class-VIII. The figure goes to even 95 per cent when it comes to the level of high school. Thus, only the children of some of the castes, who are already affluent or urbanized, are able to obtain higher education and the benefits of reservation.
By referring to the above agitations, disturbances, violence, litigation and shortcomings, I do not to intend to suggest that the task of upliftment of the downtrodden be brought to an end or that the government should give up the reservation policy. But the issue is how to carry out the process to bring about equality and development of all, the manner of identification of the so-called depressed classes or the downtrodden and the form/nature of steps to be taken for their upliftment.
The Government has used caste as the basis for the upliftment rather than identifying the class of people on the basis of vocation or their social and economic conditions who actually requires help to be promoted to the level of the forward class.
It is for this reason, today we are grappling with a situation of sub- 38 classification of the castes notified for the purpose of reservation. The experience shows that the better of the class amongst the backwards eats up most of the vacancies/seats reserved leaving the most backward with nothing in their hands.
This may be illustrated and better explained by taking three students namely ‘A’, ‘B’ and ‘C’. Both ‘A’ & ‘B’ are equals in every manner as they come from well-to-do family having same kind of status, family background, education and financial capacity. ‘A’ being a general category candidate, qualifies for admission in higher education on merits whereas ‘B’ who belongs to a backward class competes and qualifies for admission in the reserved category. The student ‘C’ who is also of the backward class but has no advantage as that which is available to both ‘A’ and ‘B’, despite competing in the backward category remains unsuccessful.
He continues to remain unsuccessful in the following years as well, as again and again backward category candidates having the status equivalent to that of a forward class or that which is available to ‘A’ and ‘B’ keeps on qualifying leaving the most backward of the backwards far behind. In this manner, the most backward of the backward category loses the battle even with the backward classes who are practically enjoying the status of the forward class people.
Casteless society-caste system vis-à-vis the varna system
The Constitution virtually visualises a casteless society and a unified society but in the name of ‘equality’ to accord facility and privileges to the depressed class/downtrodden, it is said that we have continued with the so-called Manuwadi System of caste. I am not an expert of religious scriptures nor do I claim that I have any knowledge of any one of them though I may have gone through Bhagwad Gita and Ramcharit Manas some times.
According to my limited understanding of the scriptures specially the Gita, I am of the firm view that in primitive India there was no existence of any caste system rather there was categorisation of the people according to their profession, talent, qualities and nature. This can very well be reflected by verse 13 of chapter 4 and verse 41 of chapter 18 of the Bhagwat Gita which I quote below.
Lord Krishna says that I have categorised humans in 4 varnas according to their nature and characteristics. Gita thus only promotes varna system which is different from present day caste system. It lays emphasis on abilities, qualities and consciousness of a person to have a balanced structure of society and to bring out the best in every person. The four varnas (occupational categories) are: –
The Bhagvad Gita in subsequent verses describes the intrinsic qualities of each of the varnas. The varna system depicting occupational categories can also be explained with the physical body of a person wherein the head of a person which does
1. Bharama Teachers, Priests and Intellectuals (Priestly class)
2. Kshatriyas Warriors, Police and Administrators (Administrative class)
3. Vaishayas Farmers, Merchants, Traders and Businessman (Mercantile and Farmer class) 4. Shudras Artisans, Workers and Labour class (Worker class) intellectual work is called ‘Bharaman’. The hands which protect him and his family does the job of a ‘Kshatriya’.
The abdomen which requires food to convert it into energy refers to ‘Vaishayas’, who are predominantly the farmers and the merchants invested to earn livelihood. The lower limbs (legs) do all kind of labour work and are referred to as ‘Shudras’.
The Skanda Purana also contains a shloka:
जन्मना जायतेशूद्रः संस्कारात्द्विज उच्यते20 |
which means that everyone is born as Shudra i.e. to work and slowly each one of them elevates himself to a higher status of Vaishya, Kshatriya and Brahmin on the strength of his talent, quality, character and nature.
It means the duties of Brahmins, Kshatriyas, Vaishyas and Shudras were distributed according to their qualities (guns) and nature (and not by birth). All people have different nature and characteristics. Their personality is shaped according to their qualities (gunas). Thus, different professionals duties are suited to persons of different nature and character. Since the center of society is God (Parmatma), everyone (atma) works according to their intrinsic qualities to sustain themselves and the society.
According to the varna system no one is to be considered as lower or higher, rather it is preached that everyone is equal fragment and a part and parcel of Him, the Almighty. Gita nowhere preaches that the aforesaid varnas are on the basis of birth and are not interchangeable. However, with the passage of time, the varna system deteriorated and the people started labelling these varnas on the basis of birth, ignoring the nature and characteristics of a person which is exactly the opposite to what is preached in Gita. The varnas were given the nomenclature of castes in a very loose manner.
Later, children of Brahmins started calling themselves as Brahmins, irrespective of whether they possessed the corresponding qualities or not. Similarly, the children of other varnas also adopted the varna of their father ignoring their own nature, talent and qualities. When this system grew rigid & birth based, it became dysfunctional.
In short, what is intended to be conveyed is that according to Gita there is no caste system and the varna system (categorization) referred to therein is quite distinct, based upon persons nature & qualities. Thus, there was no caste system in ancient India i.e., Bharat. The misconstruction of the varna system as a caste system was a social defect that crept in with time and was not considered to be good as it divided the society and brought about discrimination & inequality.
The social problems created by the so-called caste system or the problem of untouchability etc. were widely considered to be bad practices prevailing in the Indian society. Thus, social reformers always propagated giving up of such malpractices.
Mahatma Gandhi, the Father of the Nation, during the entire freedom struggle strenuously worked for the upliftment of the so-called depressed classes including ‘untouchables’. He described the untouchables as ‘persons of God’ – ‘Harijans’. After independence with the adoption of the constitution, we decided to move towards the unified casteless society and vide Article 17 envisaged to abolish the practice of untouchability in any form and contemplated to make untouchability ‘a punishable offence’.
Notwithstanding, the objective of casteless society and the principle of equality; the original Constitution made provision by Article 15 (3) enabling the State to make special provision for women and children despite prohibition of discrimination on grounds religion, race, caste, sex or place of birth. Similarly, Article 16 (4) enabled the State for making special provision for reservation of appointments or post in favour of any backward class of citizens. This was done with the object to bring about social equity and justice.
The Constitution at the same time vide Article 341 conferred power upon the President to notify certain castes, races or tribes or part of such caste, races and tribes to be deemed to be Scheduled Castes. In fact, the constitution otherwise does not recognise any caste except for the above deeming provision. The country as such had moved into a casteless society except for the above legal fiction only for the purposes of the constitution and not otherwise.
In other words, to put it summarily there was no caste system in primitive India. Slowly the varna system prevalent was misconstrued to be a caste system which practice was found to be socially non-acceptable and as such after independence with the adoption of the Constitution we again tried to move into a 45 casteless society but in the name of social welfare to uplift the depressed and the backward classes, we again fell into the trap of caste system. We gave privilege of reservation to the depressed or the backward class or the Scheduled Caste to bring about equality.
It is common understanding that what is conceded once to appease any class cannot be taken back. So are the benefits extended to the reserved category of persons under the constitution. Each concession once made, just goes on swelling like a raisin/balloon. This actually happened with the policy of reservation also.
Reservation is only a medium of facility but its execution revives casteism
‘Reservation’ is one of the modes of helping or uplifting the status of the OBCs/SCs/STs. Anyone who suggests another or a better way of helping the so-called depressed classes or the downtrodden or the marginalised persons of the society is immediately pounced upon as ‘Anti Dalit’.
CONCLUSION
Our predecessors, not only the Judges but also the former Prime Minister have appeared to be against providing reservation to any class or caste of persons on purely caste basis and wanted to take the country forward on merit basis. Despite the views so expressed, the Constitutional amendments envisaged to promote the depressed and the backward classes of persons to bring them to the level of the privileged class enjoying the status of an urban elite.
Thus, the reservation policy was rightly applied and since its implementation faced difficulties as some in the backward classes have marched ahead, it has become imperative to uplift the backward of the backwards, for which purpose sub-classification has become the order of the day.
Agreeing with the scholarly separate opinions authored by the Chief Justice and Brother Gavai, J., I summarise my views as under:
(i) The policy of reservation as enshrined under the Constitution and by its various amendments requires a fresh re-look and evolvement of other methods for helping and uplifting the depressed class or the downtrodden or the persons belonging to SC/ST/OBC communities. So long no new method is evolved or adopted, the system of reservation as prevailing may continue to occupy the field with power to permit sub[1]classification of a class particularly scheduled caste as I would not be suggesting dismantling of an existing building without erecting a new one in its place which may prove to be more useful;
(ii) In the Constitutional regime, there is no caste system and the country has moved into a casteless society except for the deeming provision under the Constitution for the limited purposes of affording reservation to the depressed class of persons, downtrodden or belonging to SC/ST/OBC. Therefore, any facility or privilege for the promotion of the above categories of persons has to be on a totally different criteria other than the caste may be on economic or financial factors, status of living, vocation and the facilities available to each one of them based upon their place of living (urban or rural);
(iii) The reservation, if any, has to be limited only for the first generation or one generation and if any generation in the family has taken advantage of the reservation and have achieved higher status, the benefit of reservation would not be logically available to the second generation; and
(iv) It is reiterated that periodical exercise has to be undertaken to exclude the class of person who after taking advantage of reservation has come to march, shoulder to shoulder with the general category.
The reference is accordingly answered and it is held that sub-classification of scheduled castes is permissible in law for the purposes of reservation.
Reference
State of Punjab v. Davinder Singh (2024)