1 December, 2017
Published here is Part Iof the piece, which examines the legal history of affirmative action in India.
The “Mandal Commission Report” and the controversy that followed it, is etched in the memory of every Indian. By upholding the implementation of the Mandal Commission Report, the Apex Court judgment in the case of Indra Sawhney v. Union of India, established a central role for itself in every debate on the sensitive issue of reservations in India.
One of the avowed objectives of the Indian Constitution is the creation of an egalitarian society, including, and especially, by way of the eradication of caste and the caste system. In support of this objective, several successive governments have devised various affirmative action policies to eradicate caste and support the social mobility of backward classes. These measures typically include reserving seats in representative and educational institutions or public employment for members of certain classes that have been traditionally and historically marginalised. However, over time, these measures have become a tool for populism and to appease certain communities. Therefore, every time such a measure is introduced, it has resulted in dividing public opinion and caused widespread controversy. On some occasions, this divide has escalated into public demonstrations and even riots, for or against reservation.[1]
When these hotly contested measures have come up for adjudication, the judiciary’s role has not been easy; it has to account for social realities, while simultaneously grounding its decision within the sacred framework of the Constitution. One recurrent controversy that has arisen on multiple occasions before the Apex Court is the criteria for determining backwardness in order to qualify for reservation. There have been several cases that directly deal with this question. Of these, the most significant is the 1992 decision of by the Supreme Court in Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217 [2] (Indra Sawhney).
The Indra Sawhney case was decided by a nine-judge bench of the Supreme Court in 1992. The case is famous for decisively laying down several landmark propositions such as 50% threshold in reservations, the bar against reservations in certain types of posts, the exclusion of ‘creamy layer’[3] etc.[4]. This piece is, however, limited to the debate on using caste as a factor in determining the backwardness of a group and how Indra Sawhney settled this debate to change the course of India’s reservation jurisprudence and policy forever.
I. The Legal History of Affirmative Action in India
Prior to the First Amendment, Articles 15 and 16 of the Constitution (as it was originally adopted) were examined by the Supreme Court in the context of reservations in the case of State of Madras v. Champakam Dorairajan (Champakam).[5] In this case, a government order (G.O.) apportioning seats between various castes according to their numerical strength for admission into Government medical and engineering colleges in a prescribed ratio, was struck down for being in violation of Article 15(1) of the Constitution. This G.O. relied solely on caste as an identifying factor (minus any other consideration of backwardness). The Court held that since the manifest operation of the policy indicated a clear delineation on the sole basis of caste, this was in violation of Article 15.
The decision in Champakam prompted the introduction of the First Amendment to the Constitution in June 1951. The Parliament inserted clause (4) in Article 15 along the lines of Article 16(4). Article 15(4) as it stands today reads as below:
“(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
Further to this amendment, in the year 1953, the President appointed the First Backward Classes Commission (popularly known as the ‘Kaka Kalelkar Commission’) under Article 340(1) of the Constitution, which inter alia, had the mandate of identifying methods of improving the condition of socially and educationally backward classes. In 1955, the Kaka Kalelkar Commission submitted its report wherein various factors were identified in classifying a class as backward. This included their: (i) traditional occupation or profession; (ii) percentage of literacy or general educational advancement; (iii) social position that a community occupies in the caste hierarchy; and (iv) representation in government service or in the industrial sphere. According to the Commission, the causes of educational backwardness could ultimately be traced to their social backwardness, which in turn was related to caste. Finally, the Commission decided to treat the status of caste as an important factor for this purpose, and on that basis proceeded to make a list of backward communities.[6]
Despite the strong recommendations in the Kaka Kalelkar Commission report, its shortcomings were evident to all. Three of the members of the Commission were opposed the acceptance of caste as a criterion for determining social backwardness. In fact, the Chairman of the Commission, Kaka Kalelkar, had second thoughts after signing the report. On the eve of submitting the report, Kaka Kalelkar in his covering letter disowned the report stating that the remedies suggested by the Commission were worse than the evil it sought to combat since it was once again premised on caste. [7] He feared that the recommendations would only serve to increase caste consciousness, loyalties and aspirations in the country and would be unsuccessful in eschewing caste altogether.[8] No meaningful action was taken pursuant to the Kaka Kalelkar Commission report, which was considered to be too vague and of little practical value.[9]
Finally, after almost a decade, in 1962, this issue of determining backwardness arose in the case of M.R. Balaji v. State of Mysore (Balaji) wherein the newly inserted Article 15(4) was examined by the Supreme Court.[10] Under challenge here was a governmental order issued by the State of Mysore, wherein backward classes were identified exclusively on the basis of caste. The five-judge bench of the Supreme Court struck down this classification for several reasons – the chief of which is the Court’s interpretation of the words in Article 15(4) as being “classes of citizens”, not as “castes of citizens”.[11] The test of caste was rejected for some other reasons as well – first, caste is inapplicable in many sections of Indian society which do not recognise the caste system such as Muslims or Christians; and second, the use of caste may be inappropriate if the end-goal is to eradicate caste itself.
The Court in Balaji acknowledged that caste plays a role in the social superiority and inferiority of people; however, it cautioned against exaggerating the role of caste. Consequently, although caste may not be an entirely irrelevant consideration to determine whether a group is a backward class of citizens, caste cannot be the only criteria. The use of caste as the sole or even paramount consideration in determining backwardness became impermissible.
Balaji was followed in another case originating in the State of Mysore – R. Chitralekha & Anr v. State of Mysore & Ors.,[12] (Chitralekha), which upheld an order of the government that defined “backwardness” without any reference to caste using other criteria such as occupation, income and other economic factors.
The Court ruled that while caste may be relevant to determine backwardness, the mere exclusion of caste does not impair the classification if it satisfied other tests.[13]
However, the shift in the tide soon became apparent. In one case after another, the Supreme Court began permitting the use of caste as the chief or even sole criteria in determining backwardness. The first of such cases was C.A. Rajendran v. Union of India[14] (Rajendran) – here, the Supreme Court upheld the identification of social and economic backwardness that exclusively had a list of castes, on the ground that the castes included therein were in fact wholly educationally and socially backward. Thus, without explicitly disagreeing with Balaji, Rajendran substantially watered it down to permit the use of caste as the sole indicator for classification of backwardness under Article 15.
Using Rajendran as the authority, several other cases such as A. Peeriakaruppan v.State of Tamil Nadu & Ors.,[15] and Triloki Nath v. J. & K. State,[16] permitted the same. However, in the year 1974 a three-judge bench of the Supreme Court took a contrary view in State of Uttar Pradesh v. Pradip Tandon.[17] The Court departed from Rajendran and forbade the use of caste altogether. It held that it is impermissible to use caste even as one of the factors in determining social and educational backwardness, as it would stultify Article 15(1).
The aforesaid judgments with contradictory approaches in identifying castes resulted in utter confusion as to whether caste could be used as a criterion at all, and if it could, to what extent it could be used to ascertain backwardness.
In Part II, we will examine in detail the Indra Sawhney judgment and whether it was successful in settling the issue of ascertainment of backwardness, in line with the constitutional vision and ethos. Do watch this space.
* The author was assisted by Manasa Sundarraman, Associate
[1] See, Nidhi Seth, Maratha Group To Hold ‘Biggest’ Silent March In Mumbai To Press Reservation Demand, NDTV.com available at http://www.ndtv.com/mumbai-news/maratha-group-to-hold-biggest-silent-march-in-mumbai-to-press-reservation-demand-1734863 (Last accessed on August 8, 2017); Rally By Patel Community Seeking Reservation Turns Violent In Gujarat, Economic Times available at http://economictimes.indiatimes.com/news/politics-and-nation/rally-by-patel-community-seeking-reservation-turns-violent-in-gujarat/articleshow/48187934.cms(Last accessed on August 9, 2017).
[2] Alternative citations include AIR 1993 SC 477. The references in this piece will use the citation used in the body, i.e., (1992) Supp. (3) SCC 217.
[3] The exclusion of ‘creamy layer’ refers to the application of a ‘means test’ (imposition of an income limit). Therefore, persons who belong to an identified backward class may be excluded from reservation if their income is above the said limit.
[4] As a cautionary note, it has to be pointed that that the judgment itself has no single majority opinion, and therefore, care must be taken in determining which propositions can be rooted to the judgment and are binding. See also, Gautam Bhatia, Reservations, Equality and the Constitution – IV: Indra Sawhney v. Union of India – Background and Preliminaries, Indian Constitutional Law and Philosophy available at https://indconlawphil.wordpress.com/2014/02/13/reservations-equality-and-the-constitution-iv-indra-sawhney-v-union-of-india/ (Last accessed on August 9, 2017).
[5] State of Madras v. Srimathi Champakam Dorairajan, AIR 1951 SC 226.
[6] Kaka Kalelkar, the Chairman of the Commission, in his covering letter to the President wrote “My eyes were however opened to the dangers of suggesting remedies on caste basis when I discovered that it is going to have a most unhealthy effect on the Muslim and Christian sections of the nation.” He further stated, “if we eschew the principle of caste, it would be possible to help the extremely poor and deserving from all communities. Care, however, being taken to give preference to those who come from the traditionally neglected social classes.”
[7] H.M. Seervai, Constitutional Law of India, Volume 2, lviii (4th edn. 2008 reprint).
[8] M. L. Mathur, Encyclopaedia of Backward Castes: Mandal, media and aftermath, 198.
[9] DD Basu, Commentary on the Constitution of India – Vol. 2, 1806
[10] M.R. Balaji v. State of Mysore, AIR 1963 SC 649.
[11] ¶22, Balaji.
[12] R. Chitralekha & Anr v. State of Mysore & Ors., AIR 1964 SC 1823.
[13] ¶23, Chitralekha.
[14] C.A. Rajendran v. Union of India, AIR 1968 SC 507.
[15] A. Peeriakaruppan v. State of Tamil Nadu & Ors., AIR 1971 SC 2303.
[16] Triloki Nath v. J. & K. State, [1969] 1 SCR 103.
[17] State of Uttar Pradesh v. Pradip Tandon, AIR 1975 SC 563.
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