655. By an Order made by the President of India, in the year 1979, under Article 340 of the Constitution, a Backward Class Commission was appointed to investigate the conditions of socially and educationally backward classes within the territory of India, which Commission is popularly known as Mandal Commission. The terms of reference of the Commission were :
“The terms of reference of the Commission were : –
(i) to determine the criteria for defining the socially and educationally backward classes;
(ii) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizen so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not adequately represented in public services and posts in connection with the affairs of the Union or of any State; and
(iv) (to) present to the President a report setting out the facts as found by them and making such recommendations as they thinkproper.”
656. The Commission was empowered to: –
“(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate, from the Central Government, the State Government, the ‘Union Territory Administrations and such other authorities, organizations or individuals as may, in the opinion of the Commission, be of assistance to them; and
(b) hold their sittings or the sittings of such sub-committees as they may appoint from amongst their own members at such times and such places as may be determined by, or under the authority of the Chairman.”
657. The report of the Commission was required to be submitted not later than 31st December, 1979, which date was later extended up to December 31, 1980. It was so submitted.
658. Chapter I of the Report deals with the Constitution of First Backward Classes Commission (Kaka Kalelkar Commission), its report, the letter of Kaka Kalelkar to the President, the lack of follow-up action and the letter of the Central Government referred to hereinbefore to State Governments to draw up their own lists. It also points out certain “internal contradictions” in the Report. Chapter II deals with the “Status of other backward classes in some States”. It sets out the several provisions relating to reservation in favour of O.B.Cs. obtaining in several States and the history of such reservations. Chapter III is entitled ‘methodology and data base’. It sets out the procedure followed by the Commission and the material gathered by them. Paras 3.1 and 3.2 read thus :
“3.1. One important reason its to why the Central Government could not accept the recommendations of Kaka Kalelkar Commission was that it had not worked out objective tests and criteria for the proper classification of socially and educationally backward classes. In several petitions filed against reservation orders issued by some State Governments, the Supreme Court and various High Courts have also emphasised the imperative need for an empirical approach to the defining of socially and educationally backwardness or identification of Other Backward Classes.
3.2. The Commission has constantly kept the above requirements in view in planning the scope of its activities. It was to serve this very purpose that the Commission made special efforts to associate the leading Sociologists, Research Organisations and Specialised Agencies of the country with every important facet of its activity. Instead of relying on one or two established techniques of enquiry, we tried to cast our net far and wide so as to collect facts and get feed-back from as large an area as possible. A brief account of this activity is given below.”
659. It then refers to the Seminar held by Department of Anthropology of Delhi University in March 1979, to the questionnaire issued to all departments of Central Government and to the State Governments (the pro formas are compiled in Vol. II of the Report) the country-wide touring undertaken by the Commission, the evidence recorded by it, the socio-educational field survey conducted by it and other studies and Reports involved in its work. In Chapter IV the Commission deals with the inter-relationship between social backwardness and caste. It describes how the fourth caste, Shudras, were kept in a state of intellectual and physical subjugation and the historical injustices perpetrated on them. In para 4.5 the Commission states : “The real triumph of the caste system lies not in upholding the supremacy of the Brahmin, but in’ conditioning the consciousness of the lower castes in accepting their interior status in the ritual hierarchy as a part of the natural order of things . It was through an elaborate, complex and subtle scheme of scripture, mythology and ritual that Brahminism succeeded in investing the caste system with a moral authority that has been seldom effectively challenged even by the most ardent social reformers.”
660. Chapter V deals with ‘social dynamics of caste’. In this chapter, the Commission emphasises the fact that notwithstanding public declarations condemning the caste, it has remained a significant basis of action in politics and public life. Reference is made to several caste associations, which have come into being after the Constitution. The concluding part in this Chapter, para 5.17, reads :
“The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organisation of the Hindu society. The pace of social mobility is no doubt increasing and some traditional features of the caste system have inevitably weakened. But what caste has lost on the ritual front, it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and thereby accentuated social tensions. Whether these tensions rent the social fabric or the country is able to resolve them by internal adjustments will depend on how understandingly the ruling high castes handle the legitimate aspirations and demands of the historically suppressed and backward classes.”
661. Chapter VI deals with Social Justice, Merit and Privilege’. It attempts to establish, that merit in a elitist society is not something inherent but is the consequence of environmental privileges enjoyed by the members of higher castes. This is sought to be illustrated by giving an example of two boys Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off middle class and educated family, attends one of the good public schools in the city, has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.
662. Chapter VII deals with ‘Social justice, Constitution and the law’. It refers to the relevant provisions of the Constitution, to the decision in M.R. Balaji v. State of Mysore, 1963 Suppl (1) SCR 439 and various subsequent decisions of this Court and discusses the principles flowing from the said decisions. It notes that the subsequent decisions of this Court in C.A. Rajendran v. Union of India, 1968(1) SCR 721, State of Andhra Pradesh v. P. Sagar 1968 (3) SCR 595 and State of Andhra Pradesh v. U.S.V. Balram, 1972(3) SCR 247 etc. show a marked shift from the original position taken in Balaji or several important points. In particular, it refers to the observations in Rajendran to the effect that ” caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward class of citizens within the meaning of Article 15(4)”. It refers to the statement in A. Peeriakaruppan v. State of Tamil Nadu, 1971(2) SCR 430 to the effect that “a caste has always been recognised as a class.” It also commends the dissenting view of Subba Rao J. in T. Devadasan v. Union of India, 1964(4) SCR 680 (wrongly referred to as Rangachari) – ” General Manager, Southern Railway v. Rangachari, 1962(2) SCR 586 “
663. Chapter VIII deals with ‘North-South Comparison of other Backward Classes Welfare’. It is a case study of provisions in force in two Southern States namely Tamil Nadu and Karnataka and the two Northern States. Bihar and Uttar Pradesh. The conclusions drawn from the discussion are stated in para 8.45 in the following words :-
“In view of the foregoing account, the reasons for much stronger reaction in the North than South to reservations, etc. for other Backward Classes may be summarised as below :
(1 Tamil Nadu and Karnataka had a long history of Backward Classes movements and various measures for their welfare were taken in a phased manner. In Uttar Pradesh and Bihar such measures did not mark the culmination of a mass movement.
(2) In the south “the forward communities have been divided either by the classification schemes or politically or both…… In Bihar and U. P. the G.Os. have not divided the forward castes.”
(3) In the South, clashes between Scheduled Castes and Backward peasant castes have been rather mild. In the North these cleavages have been much sharper, often resulting in acts of violence. This has further weakened the backward classes solidarity in the North.
(4) In the non-Sanskritic South, the basic Varna cleavage was between Brahmins and non-Brahmins and Brahmins constituted only about 3 per cent of the population. In the Sanskritic North, there was no sharp cleavage between the forward castes and together they constituted nearly 20 per cent of the population. In view of this the higher castes in U. P. and Bihar were in a stronger position to mobilise opposition to backward class movement.
(5) Owing to the longer history and better organisation of other Backward castes in the South, they were able to acquire considerable political clout. Despite the lead given by the Yadavas and other peasant castes, a unified and strong OBC movement has not emerged in the North so far.
(6) The traditions of semifeudalism in Uttar Pradesh and Bihar have enabled the forward castes to keep tight control over smaller backward castes and prevent them from joining the mainstream of backward classes movement. This is not so in the South.
(7) “The economies of Tamil Nadu and Karnataka have been expanding relatively faster. The private tertiary sector appears to. be growing. It can shelter many forward caste youths. Also, they are prepared to migrate outside the State. The private tertiary sectors in Bihar and U. P. are stagnant. The forward caste youths in these two States have to depend heavily on Government jobs. Driven to desperation, they have reacted violently.”
664. Chapter IX sets out the evidence tendered by Central and State Governments while Chapter X deals with the evidence tendered by the Public. Chapter XI is quite important inasmuch as it deals with the “Socio-Educational Field Survey and Criteria of Backwardness”. In this Chapter, the Commission says that it decided to tap number of sources for the collection of data, keeping in mind the cirticism against the, Kaka Kalelkar Commission as also the several judgments of this Court. It says that Socio-Educational Field Survey was the most comprehensive inquiry made by the Commission in this behalf. Right from the beginning, this Survey was designed with the help of top social scientists and specialists in the country. Experts from a number of disciplines were associated with different phases of its progress. It refers to the work of Research Planning Team of Sociologists and the work done by a panel of experts led by Prof. M. N. Srinivas. It refers to the fact that both of them concurred that “in the Indian context such collectivities can be castes or other hereditary groups traditionally associated with specific occupations which are considered to be low and impure and with which educational backwardness and low income are found to be associated.” The Commission says further that with a view to providing continuous guidance at the operational level, a Technical Advisory Committee was set up under Dr. K. C. Seal, Director General, Central Statistical Organisation with the Chief Executive National Sample Survey Organisation and representatives of Directors of State Bureaux of Economics and Statistics as Members. The Commission sets out the Methodology evolved by the Experts’ panel and states that survey operations were entrusted to the State Statistical Organisations of the concerned States/Union Territories. It refers to the training ‘imparted to the survey staff and to the fact that the entire data so collected was fed into a computer for electronic processing of such data, Out of the 406 districts in the country, the survey covered 405 districts. In every district, two villages and one urban block was selected and in each of these villages and urban blocks, every single household was surveyed. The entire data collected was tabulated with the aid of National Informatic Centre of Electronics Commission of India. The Technical Committee constituted a Sub-Committee of Experts to help the Commission prepare “Indicators of Backwardsness” for analysing the data contained in the computerised tables. In para 11.23 (page 52) the Commission sets out the eleven Indicators/Criteria evolved by it for determining social and educational backwardness. Paras 11.23, 11.24 and 11.25 are relevant and may be set out in full : –
“11.23. As a result of the above exercise, the Commission evolved eleven ‘Indicators’ or ‘criteria’ for determining social and educational backwardness. These 11 Indicators’ were grouped under three broad heads, i.e., Social, Educational and Economic. They are : –
A. Social
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the State average.
B. Educational
(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.
C. Economic
(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in kucha houses is at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the households.
(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average.
11.24 As the above three groups are not of equal importance for our purpose, separate weightage was given to ‘Indicators’ in each group. All the Social ‘Indicators’ were given a weightage of 3 points each. Educational ‘Indicators’ a weightage of 2 points each and Economic ‘Indicators’ a weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered important as they directly flowed from social and educational backwardness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also.
11.25 It will be seen that from the values given to each Indicator, the total score adds up to 22. All these 11 Indicators were applied to all the castes covered by the survey for a particular State. As a result. of this application, all castes which had a score of 50 per cent (i.e., 11 points) or above were listed as socially and educationally backward and the rest were treated as ‘advanced’. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference.
665. It will also be useful to set out the observations of the Commission in para 11.27 :-
“11.27 In the end it may be emphasised that this survey has no pretentions to being a piece of academic research. It has been conducted by the administrative machinery of the Government and used as a rough and ready tool for evolving a set of simple criteria for identifying social and educational backwardness. Throughout this survey our approach has been conditioned by practical considerations, realities of field conditions, constraints of resources and trained manpower and paucity of time. All these factors obviously militate against the requirements of a technically sophisticated and academically satisfying operation.”
666. Chapter XII deals with ‘Identification of OBCs’. In the first instance, the Commission deals with OBCs among Hindu Communities. It says that it applied several tests for determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services. The multiple approach adopted by the Commission is set out in para 12.7 which reads : –
“12.7 Thus, the Commission has adopted a multiple approach for the preparation of comprehensive lists of other Backward Classes for all the States and Union Territories. The main sources examined for the preparation of these lists are :-
(i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and indigenous tribes);
(iii) personal knowledge gained through extensive touring of the country and receipt of voluminous public evidences as described in Chapter X of this Report; and
(iv) Lists of OBCs notified by various State Governments”
667. The Commission next deals with OBC among Non-Hindu Communities. In para graphs 12.11 to 12.16 the Commission refer to the fact that even among Christian, Muslin and Sikh religions, which do not recognise caste, the caste system is prevailing though without religious sanction. After giving a good deal of thought to several difficulties in the way of identifying OBCs among Non-Hindus, the Commission says, it has evolved a rough and ready criteria viz., (1) all untouchables converted to any non-Hindu religion and (2) such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counter-parts have been included in the list of Hindu OBCs – ought to be treated as SEBCs. The Commission then sought to work out the estimated population of the OBCs in the country and arrived at the figure of 52 per cent. Paras 12.19, 12.22 may be set out in full in view of their relevancy :
“12.19 Systematic castewise enumeration of population was introduced by the Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of castewise population beyond 1931 are not available. But assuming that the inter se rate of growth of population of various castes, communities and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total population of the country.
12.22 From the foregoing it will be seen that excluding Scheduled Castes and Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian population.
668. Chapter-XIII contains various recommendations including reservations in services. In view of the decisions of the Supreme Court limiting, the total reservation to 50 per cent, the Commission recommended 27 per cent reservation in favour of OBCs (in addition to 22.5 per cent already existing in favour of SCs and STs). It recommended several measures for improving the condition of these backward classes. Chapter-XIV contains a summary of the report.
669. Volumes 2 to 9 of the Report contain and set out the material and the data on the basis of which the Commission made its recommendations. Volume 11 contains the State-wise lists of Backward Classes, as identified by the Commission. (It may be remembered that both the Scheduled Castes order and Scheduled Tribes order notified by the President contain State-wise lists of Scheduled Castes and Scheduled Tribes). Volume II inter alia contains the questionnaire issued to the State Government/Union Territories, the questionnaire issued to the Central Government Ministries/Departments, the questionnaire issued to the general public, the list of M.Ps. and other experts who appeared and gave evidence before the Commission, the criteria furnished to Central Government Offices for identifying OBC employees for both Hindu and Non-Hindu Communities, report of the Research Planning Team of the Sociologists and the pro formas employed in conducting the Socio-Education Survey.
Reference
This article is an excerpt from the judgment of Justice BP Jeevan Reddy in Indira Sawhney v Union of India 1993 (1) SCT 448, authored on behalf of M. H. Kania, C.J. and M. N. Venkatachaliah, A. M. Ahmadi, JJ.) (Majority view)