Justice R.M. Sahai [1]
573. Both the words ‘backward’ and ‘class’ thus are of very wide import. Assuming the two words as one and reading it as, ‘backward class’ the question is can it be understood as cluster of backward Hindu is caste ? Or in the broad and wide sense as extending and including ‘any’ backward class of citizens irrespective of race, religion or caste ? Which construction would be in keeping with the constitutional purpose ? Taking up the narrower construction, it may be stated that to interpret a constitutional provision its history, circumstances in which it was adopted as well as the events immediately surrounding its adoption are necessary to be looked into to appreciate the purpose and objective of its use. The word ‘backward class’ had started acquiring meaning at the end of 19th Century with commencement of enrolment on caste basis in 1891, recognition of special treatment to some and communal representation to others in early 20th Century. The Fort St. George Gazette No. 40 of November 1985 mentions grants-in-aid to schools for the untouchable. In 1921 backward community in Mysore meant, ‘all other communities other than Brahmins’. In Bombay in 1925 backward classes were all except, ‘brahmin’ Prabhus, Marwaris, Parsis, Banias and Christians’. Indian Statutory Commission (Hat-long Committee) defined Backward Classes in 1928, ‘castes or classes which are educationally backward. They include the depressed classes, aboriginals, hill tribes and criminal tribes’. The United Province Hindu Backward Classes League founded in 1929 suggested Hindu Backward as, ‘all of the listed communities belonging to non-dwijya (that is twice born) or degenerate or Sudras classes of Hindus’. Travancore in 1935 passed resolution on report of Justice Nokes on communal lines including all classes. Madras Provincial Backward Classes League was founded in 1939 for securing separate treatment for ‘forward non-brahmin communities’. It thus did not have a definite meaning. Somewhere it was everyone except Brahmin and others for the so called Sudras. All depending on social and economic conditions Prevailing in a particular State. In any case it ‘never acquired a definite meaning at the all India level. There had been no attempt to define it or employ it on the national level’. The statement of Dr. Ambedkar in the Constituent Assembly for determination of backwardness at local or State-level was thus not casual but an outcome of practical reality and historical truth.
574. Historically, therefore, what started as social upliftment measure of the downtrodden amongst Hindus in some princely States gradually developed into formation of various associations in different States encouraged by the social caste consciousness created by the Britishers to demonstrate backwardness for claiming Preferential treatment injected in the society by communal representation. The Constitution makers were aware of this background. It is vividly reflected in the Constituent Assembly Debates. Therefore a very vital, question arises if the expression ‘backward class’ used in Article 16(4) has to be read and understood as extending or applying to backward Hindu Castes only. Meaning of the word ‘backward’ and ‘class’ have already been explained. Language of the expression does not warrant reading of the expression as backward caste. When two words one wider in import and broader in application and other narrower were available and the constitution makers opted for one the other, on elementary principle of construction, should be deemed to have been rejected. What was avoided by the framers of the Constitution, for good reasons and, to achieve the objective they had set up for the governance of the country cannot be brought back either by government or courts by interpretation or construction unless the consequences of accepting the literal or the normal meaning appears to be so Unreasonable that the Constitution makers would have never intended. ‘Although the spirit of an instrument especially of a constitution is to be respected not less than its letter yet the spirit is to be collected chiefly from its words’. For this reason alone any suggestion of accepting the expression as interchangeable as caste cannot be accepted. Even the spirit behind use of the expression was not to provide for cluster of castes, known as Sudras of the Hindu hierarchy before the Constitution, but for groups or class of different communities following different religions, as right fundamental or otherwise have been guaranteed to members of every community irrespective of religion, race, caste or birth. Article 340 empowers President to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India. Such classes may belong to any community. Preferential treatment accorded to various communities before 1950 on basis of religion, race or caste was done away with. Promise was to take care of minorities as well. Article 335 ensured claim of SC/ST in services. Other backward citizens irrespective of race, religion were to be taken care of as, ‘The Constitution was framed with grand compromise. A splendid compromise between formal equalitarian justice and compensatory justice through benign or protective discrimination was devised so beautifully that that was to serve the purpose of assimilation, integration and equal partnership in national building by making equal contribution in the main stream of life’. If Article 16(4) is confined to backward classes of Hindu hierarchy by narrowing it down to caste it would be doing violence to the language of the provision and the spirit in which the expression was used leading to injustice. No provision in the Constitution indicates that the expression has to be understood in such narrow sense. Reading it otherwise may lead to contradiction. Normal and natural meaning of an expression can be, disregarded only if it is found that the framers of the Constitution did not intend to use it in that sense and ‘absurdity and injustice of applying the provision would be so monstrous that all mankind would, without hesitation, unite in rejecting the application’. When the Constitution was framed the founding fathers were aware of the meaning and understanding of the word ‘backward’. They were also aware that hereinafter members of all community were to be treated alike. The State was made responsible, therefore, for ‘any’ backward class of citizens coming from whatever community, caste or religion. State, therefore, cannot discriminate, while identifying backward class on race, religion, caste or birth.
575. True the discussions in the Constituent Assembly Debates centred round caste and community. Even Dr. Ambedkar said, ‘what are called backward classes are ……nothing but a collection of certain castes’. That however cannot be conclusive for construing the expression as, the historical background and perhaps what was accepted or what was rejected by the Constituent Assembly while the Constitution was being framed may be taken into account, ‘but not to interpret the Constitution’. *76 What emerged out of shared understanding by consensus was not backward caste but backward class, an expression of elasticity capable of expanding depending on the nature and purpose of its use. Motivation for use of expression ‘backward class’ might have come from a feeling to accommodate and benefit those who were deprived of entering into services due to social and economic conditions amongst Hindus. But what is being interpreted is a Constitution, a document, an instrument which is good not for a season or a session but for centuries during the course of which even the most stable society may undergo social, economic, political and scientific changes resulting in transformation of values. Are the values in the society same today as they were in 1950 or 1900 ? Words or expressions remain the same but its meaning and application with passage of time changes. When the framers of the Constitution deliberately used an expression of expansive nature then as said by Justice Frenk Futter, ‘they should be left to gather meaning from experience. For they relate to whole domain of social and economic fact and statesman who founded this nation knew too well that only a stagnant society remains unchanged’. This Court is being asked to interpret the provision in 1990. It cannot ignore the present by going into past.
“The law, even as it honours the past, must reach for justice of a kind not measured by force, by the pressures of interest groups, nor even by votes, but only by what reason and a sense of justice say is right. Brown was ‘law’ in 1954, even though the ‘separate but equal’ doctrine had half a century of precedent and practice behind it. Continuity is essential to law as a whole, but the continuity must be creative.”
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448