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REVERSE DISCRIMINATION IN FAVOUR OF OTHER BACKWARD CLASSES: SOME REFLECTIONS

Ajendra Srivastava*



I. INTRODUCTION

The Central Government's move to provide reservation in admission to higher educational institutions run by it revived the wrangle over caste-based reservations. What is disturbing is the politicization of the issue of reservation. One can experience the political reality of the issue in the emergence of the caste based politics. The equally disturbing is growing division of the society on the lines of caste. This necessitated a relook at the policy of making caste oriented reservations.

It is not intended to conceal all the important and glaring fact that caste-based discrimination is still rampant in Indian society which demands caste-conscious affirmative action. Hence, this famous remark by Justice Harry Blackmun in the University of California Regents v. Bakke (The Bakke case1): "In order to get beyond racism we must first take account of race..."2.

The present paper relates to the issue of constitutional and legal propriety of the caste-based reservation in government jobs and admissions3. The issue is profound one and cannot be considered in isolation of several political and social facts that arise in this context. But the present paper will be confined to considering the legal issues only since the purpose is not to take a stand on the issue whether caste-based laws are desirable or not. The purpose is rather modest one - to examine the case for reverse discrimination especially in favour of other backward classes (OBCs) in the light of the principles of justice and the relevant judicial decisions.

The present paper is structured in the following manner. Part II examines the case for preferential treatment in the form of fixing quotas with reference to the principles of justice; Part III highlights the true import of the constitutional provisions which are germane in the context of reverse discrimination; the discussion in Part IV centres round the Mandal Commission case to show how the judgment in that case runs contrary to the principles of justice, the constitutional scheme and the dominant judicial perception; Part V contains concluding remarks.

II. REVERSE DISCRIMINATION IN THE LIGHT OF PRINCIPLES OF JUSTICE

The issue to be considered is whether preferential treatment as reverse discrimination is justified? To put it differently, whether any departure from merit and efficiency criteria to correct past injustice is unjust? The more important question is to what extent the affirmative action programmes based on irrelevant criteria such as caste and religion should be allowed to override merit and efficiency criteria. The initial assumption is that the preferential treatment as reverse discrimination prima facie runs counter to the principle of equality of opportunity.

To justify preferential treatment the notion of distributive justice4 is often invoked. In giving shape to the notion of distributive justice, Aristotle writes: "Injustice arises when equals are treated unequally and also when unequals are treated equally".5 Distributive justice requires the distribution of benefits and burdens to each according to his place or desert in the society. But choosing the proper basis of distribution for making preference is not free from problems. It has been suggested that individual need, status, merit or entitlement are all in appropriate circumstances, proper bases of distribution of benefits.6 These bases of distribution are pointer to the different types of inequalities found in the society such as the inequality of need and inequality of merit. But these inequalities differ in that they cannot be addressed by dispensing the same types of goods. For example, inequality of merit demands a distinct goods which cannot be the same demanded by the need. The distribution of goods in accordance with merit has a competitive aspect which lacks in the case of inequality resulted from the need.7

Further, in the case of merit, in addition to the distribution of goods, the distribution of the opportunity of achieving the good is also required. This leads us to the notion of equality of opportunity which postulates that "there should be no exclusion from access on grounds other than those considered appropriate or rational for the good in question".8 In other words, it rules out a priori exclusion. Everyone will agree that for getting admissions in a medical college - where seats are limited - merit is an appropriate criterion. Now, exclusion of potential candidates on grounds other than merit is prima facie denial of equality of opportunity.

In shedding light on the true content of equality of opportunity, Bernard Williams adds: "It requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but that the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them."9 In defining a "section of society", we cannot include sections of the population identified just by the characteristics which figure in the grounds for allocating the good since it will further exclude some section of the population.10

Bernard Williams makes a further point by putting the question what would happen when sections of society are identified by characteristics which are corelated with grounds of exclusion? In reply, he gives the example of an imaginary society in which great prestige is attached to membership of a warrior class. But members of the warrior class are recruited from certain wealthy families only because only members of wealthy families possess required physical strength. Later on, under pressure from egalitarian reformers, the rules of recruitment are changed in such a manner that warriers are now recruited from all sections of society on the basis of a suitable competition. But result is that the wealthy families still provide virtually all the warriers because the rest of the population is so under-nourished by reason of poverty that their physical strength is inferior to that of the members of the wealthy families. In protest, reformers say that equality of opportunity has not really been achieved. The wealthy families reply that in fact, it has, and that the poor now have the equal opportunity of becoming warriors if they pass the test. They further argue that poor are excluded for not being poor but for being weak11. Everyone will agree with the proposition advanced by B Williams on the basis of above example that equality of opportunity is quite empty unless it is made more effective by taking affirmative action programmes in the forms of welfare schemes and other special provisions to address the causes of inequality.12

To illustrate the point well, B Williams gives one more example where causal connections are not so explicit to address. He makes the point that in some educational institutions, selection favours children in direct proportion to their social class and it is environmental factors that contribute to the results directly. He thus asks the question are we really offering equality of opportunity to Smith and Jones by applying the same criteria to Smith as affected by favourable conditions and Jones as affected by unfavourable but curable conditions. Here some affirmative action is needed to equal up the conditions.13 Williams asserts that giving "Smith and Jones equality of opportunity involves regarding their conditions, where curable, as themselves part of what is done to Smith and Jones and not part of Smith and Jones themselves. Their identity, for these purposes, does not include their curable environment, which is itself unequal and a contributor of inequality".14

At this point it would be profitable to turn to the two principles of justice given by John Rawls. A revised statement of the two principles of justice is as follows:

(a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all; and

(b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society (the difference principle).15

Rawls explained that the first principle has got priority over the second and in the second principle, fair equality of opportunity is prior to the difference principle. It means that in applying, say, difference principle we assume that both the first principle and the fair equality of opportunity principle are satisfied. It may also be clarified that the second principle can only operate within a setting a background institutions that satisfy the requirements of the first principle.16

Dwelling upon the notion of fair equality of opportunity which is central to his thesis, John Rawls says that its role is "to correct the defects of formal equality of opportunity - careers open to talents - in the system of natural liberty, so called".17 Fair equality of opportunity demands not merely that public offices and social positions be open in the formal sense, but that all should have a fair chance to attain them. To exemplify, he goes on to say: "supposing that there is a distribution of native endowments, those who have the same level of talent and ability and the same willingness to use these gifts should have the same prospects of success regardless of their social class of origin, the class into which they are born and develop until the age of reason".18 To achieve the desired results, Rawls insists on developing a free market system that adjust the long run trend of economic forces so as to prevent excessive concentrations of property and wealth."19

Coming closure to the "two principles of justice" it may be pointed out that it is the difference principle that governs the social and economic inequalities. But this should not be forgotten that the difference principle is subordinate to both the first principle and the principle of fair equality of opportunity. A further point is that the difference principle applied only when the prior principles are satisfied."20

The next crucial question that arises in this context is how to identify the least advantaged. Here, Rawls introduces the idea of primary goods and applies it to identify the least advantaged. His list of primary goods include:

(i) The basic rights and liberties.

(ii) Freedom of movement and free choice of occupation against a background of diverse opportunities.

(iii) Powers and prerogatives of offices and positions of authority and responsibility.

(iv) Income and wealth.

(v) The social bases of self-respect, understood as those aspects of basic institutions normally essential if citizens are to have a lively sense of their worth as persons and to be able to advance their ends with self-confidence.21

The genius of John Rawls lies in the fact that he preferred to define the least advantaged mainly in terms of income and wealth and not by reference to three contingencies though those contingencies have been responsible for social and economic deprivation of the least advantaged. He noted that there is some tendency among individuals most affected by the three contingencies to be among the least advantaged.22 The three kinds of contingencies are:

(a) their (citizen's) social class of origin;

(b) their native endowments (as opposed to their realized endowments); and their opportunities to develop these endowments as affected by their social class of origin;

(c) their good or ill fortune, or good or bad luck, over the course of life.23

From the preceding account of the preferential treatment policies in the context of distributive principles the following prepositions may be regarded as discernible: (i) there must be strong and overriding considerations to justify reverse discrimination; (ii) the reverse discrimination policies are justified only to the extent their role is subordinate to the fair equality of opportunity principle; and (iii) identification of the beneficiaries of reverse discrimination on the basis of a social contingency, say, race or caste, has the potential to create the social divisions.

Alan H. Goldman who produced an indepth study24 on reverse discrimination in 1979 argued persuasively that preferential treatment when applied to whole group of minorities defined only by race or sex can hardly be justified. In this context, he makes the following points: that reverse discrimination is justified in order to compensate specific past violations of these rights; that a preferential policy is justified as well in order to create equal opportunity in the future for the chronically deprived section of the society; that a preferential policy "cannot be justified when directed indiscriminately at groups defined only by race or sex, in order merely to increase their percentage representation in various social positions, and that affirmative action programmes are unjust to the extent that they encourage or directly mandate such group oriented preferential policies."25 He is, in fact, not averse to the idea of reverse discrimination as such but his objection relates to such preferential policies which address a whole group defined only by race or sex as "they tend to benefit many (and in some cases mainly) individuals who do not deserve preference on either of the grounds to be defended."26 The following passage from his work succinctly makes the point which is unanswerable:

They (preferential policies) tend to throw into the same categories poor and middle-class blacks, deprived women and those not deprived, young white males and those already entrenched in their position. They ignore the fact that these individuals are members of more narrowly defined groups, and that interests not deserts divide along simple racial or sexual lines. More specifically, even the weakest programmes are too strong in encouraging group reverse discrimination by their numerical goals; many, are too weak in failing to provide preference for those who really deserve or need it, and too weak as well in enforcing their justified provisions regarding non-discrimination.27



III. REVERSE DISCRIMINATION IN THE CONTEXT OF CONSTITUTIONAL PROVISIONS

The equality clause of the Constitution comprises Article 14 to 18. Of these, Articles 15 and 16 have direct bearing on the issue of reservation in admissions and of post in the state employment. Articles 15 and 16 expressly enable the state to reserve seats in educational institutions and to reserve posts in state services, respectively. In this connection, reference may also be made to Articles 340, 341 and 342. Articles 341 and 342 empower the President to notify by public notification 'Scheduled Castes' and 'Scheduled Tribes'. Similarly, Article 340 empowers the President to appoint a commission to investigate the conditions of socially and educationally backward classes. Here provisions contained in Articles 46 and 335 also deserve mention. Article 46 which forms part of the "directive principles of state policy" mandates the state to promote "with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Schedules Castes and the Schedules Tribes, and shall protect them from social injustices and all forms of exploitation. Further, Article 335 tries to strike a balance between educational and economic interests of the weaker sections of the society and the maintenance of efficiency of administration by providing therein: "the claims of the members of the Schedules Castes and the Schedules Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State".

However, above Articles are by no means exhaustive of the provisions meant to ensure adequate representation of deprived citizens in governance of the country. Here, provisions contained in Articles 330 and 332 are important to note. Together they provide that seats shall be reserved in the House of the People and in the Legislative Assemblies of the States mainly for the scheduled castes and the scheduled tribes in proportion to their population albeit for a limited period.28

It is a distressing feature of the Constitution that it uses different expressions to describe backward class of citizens. While Articles 15(4) and 340 use the expression 'socially and educationally backward classes" ("SEBCs"), Articles 16(4) and 46 use "backward class of citizens" ("BCs") and "weaker sections of the people" respectively. It is not clear whether these expressions carry different meaning in absence of their definitions in the Constitution. However, the expressions - the Schedules Castes (SCs) and the Schedules Tribes (STs) are defined and it may be said that they form a distinct category in view of their stark backwardness and the constitutional scheme.29

What adds to woe is the fact that judicial decisions instead of clarifying the matter only add to confusion. In the Mandal Commission case, Justice BP Jeevan Reddy delivering the majority view (for himself and on behalf of MH Kania CJ, and MN Venkatachaliah, AM Ahmadi JJ) noted that "weaker sections of the people" referred to in Article 46 included the term "backward class of citizens" but without offering any explanation how he reached that conclusion30. This aspect of the matter will be considered later.

Now coming back to Articles 15 and 16 it would be profitable to give the full text of the two Articles.



Article 15. Prohibition of discrimination on grounds of religion, race, caste, or sex or place of birth - (1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly, or partly out of State funds or dedicated to the use of general public.

(3) Nothing in this Article shall prevent the state from making any special provision for women and children.

31[(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.]

32[(5)Nothing in this Article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any specially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.]

Article 16. Equality of opportunity in matters of public employment - (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this Article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office33 under the Government of, or any local or other authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory] prior to such employment or appointment.

(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward classes of citizens which, in the opinion of the state, is not adequately represented in the services under the State.



34 [(4-A) Nothing in this Article shall prevent the State from making any provision for reservation35 in matters of promotion, with consequential seniority, to any class] or classes or posts in the services under the state in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the states, are nor adequately represented in the services under the State.]

36 [(4-B) Nothing in this Article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provisions for reservation made under clause (4) or clause (4(A)) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.]

(5) Nothing in this Article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

First to take Article 16 which guarantees every citizen equality of opportunity in matters relating to employment under the state. This is provided by Article 16(1). To add content to the equality of opportunity, Article 16(2) forbids discrimination by the state against citizens on any or all of the grounds mentioned therein37. The use of the word "only" in this context is significant as it denotes that if someone is discriminated solely on the grounds mentioned in clause (2), say, caste or religion etc. it will be a clear of violation of Article16(2).38

However, Article 16(4) expressly authorises the state to make reservation of posts in favour of any backward class of citizens which in the opinion of the state is not adequately represented in services under the state.

While Article 16 is restricted in its operation to the matters relating to state employment, Article 15 has application in all other matters. Like Article 16(2), Article 15(1) prohibits discrimination by the state against citizens on the grounds mentioned therein. The grounds mentioned in Article 15(1) are similar to those of mentioned in Art 16(2) with this difference that the latter does not allow discrimination on two additional grounds namely, descent and residence. Further, Article 15(4), allows the state for making any special provision for the advancement of any socially and educationally backward class of citizens or for the Scheduled castes and Scheduled Tribes. A similar provision is contained in Article 15(5) which enables the state to make any special provision in favour of same groups of citizens mentioned in Article 15(4) which relate to their admission to educational institutions including private institutions other than the minority educational institutions.

It may be mentioned that originally Article 15 did not contain sub-clauses (4) and (5). Sub-clause (5) was inserted by the Constitution (93rd Amendment) Act, 2005. As far as sub-clause (4) is concerned, it was added by the Constitution (First Amendment) Act, 1951 as a result of the Supreme Court's decision in Madras v. Champakam Dorairajan39 which invalidated a "communal GO" fixing quota for admission in educational institutions on community lines as violative of Article 29(2). Justice Das (for himself, Kania CJ, and Sastri, Fazal Ali, Mukherjea, Mahajan and Bose JJ) observed:

Seeing, however, that clause (4) was inserted in Article 16, the omission of such an express provision from Article 29 cannot but be regarded as significant. It may well be that the intention of the constitution was not to introduce at all communal considerations in the matters of admission into any educational institution maintained by the state or receiving aid out of State funds."40

Champakam Dorairajan case and the First Amendment which followed it make the point beyond doubt that the sub-clause (4) is in the nature of an exception to sub-clause (1) of Article 15. As Article 16 is similarly structured the same proposition would also apply to Article 16.

Here some striking dissimilarities between the two Articles are important to note. First major dissimilarity is that while Article 15(4) does not expressly authorizes the state to make "reservations" as such as it uses the expression “special provision for the advancement of” which is wider than the term reservation and may include affirmative action programmes as well to equal up the conditions of SEBCs and the SCs and STs. Article 16(4), on the other hand, expressly allows the state to reserve posts in favour of backward class of citizens.41

One more striking dissimilarity between the Articles 15 and 16 is that while Article 16(4) allows reservation of posts in favour of backward class of citizens, Article 15 allows preferential treatment in favour of any "socially and educationally backward classes of citizens" and SCs and STs. Before the decision in the Mandal Commission case it was generally understood that the expression "backward classes of citizens" had the same meaning as the expression "socially and educationally backward classes of citizens" and the SCs and STs. So the cases decided in the context of Article 15(4) were relied on in the cases arose in relation to Article 16(4) and vice versa. But in that case the Supreme Court took the position that the expression "backward class of citizens" is wider than the SEBCs and it takes in SCs, STs and all other backward class of citizens including the SEBCs. It means that certain classes which may not qualify for Article 15(4) may qualify for Article 16(4)42.

It may be pointed out that the original Draft Constitution prepared by the Constitutional Advisor, refrained from any mention of backward class. Instead, it used the expression "particular classes of citizens" [Clause 11(3)]43. But the Drafting Committee thought it fit to substitute the word "backward class" for the words "particular classes" found in Clause 11(3)44 [Corresponding to Art 10(3) of the Draft constitution prepared by the Drafting Committee and Article 16(4) of the present Constitution].However, during the course of discussion in the Constituent Assembly, the use of the word 'backward' provoked heated debate. Replying to various sorts of criticism leveled against the Draft Article 10(3), Dr. B.R. Ambedkar said:

... unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think ... is the justification why the Drafting Committee undertook ... the responsibility of introducing the word "backward" which, I admit, did not find a place in the fundamental right in the way in which it was passed by this Assembly"45.

In the same speech on the relationship between Article 16(1) and Article 16(4), Dr. Ambedkar observed:

... the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, ... we had to reconcile this formula with the demand made by certain communities that the administration which has now for historical reasons been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, ... we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, ... reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the state and only 30 per cent are retained as the unreserved. Could anybody say that the reservation on 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It can not be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the constitution and effective in operation"46.

IV. THE MANDAL COMMISSION CASE

The decision in the Mandal Commission case rests on this basic premise that since caste is a social class in India, therefore, reservation of posts on the basis of caste does not attract the prohibition of Article 16(1) and (2). As a corollary to this, the Court took the stand that Article 16(4) was not an exception to Article 16(1), the former being the facet of the latter. However, even a cursory glance at the earlier decisions of the Supreme Court reveals that above observations runs contrary to the dominant judicial opinion in this regard.

Before the Mandal Commission case, the view was taken as settled that Article 16(4) is an exception to Article 16(1) and (2).47 The only decision in which the Supreme Court held otherwise is that of the Thomas's case. In that case, Ray CJ, Mathew, Krishna Iyer and Fazal Ali JJ took the view that Article 16(4) was not an exception to Article 16(1) but only an emphatic way of putting the extent to which equality of opportunity could be carried ..."48

However, a little reflection on the majority judgment shows that the issue whether Article 16(4) is an exception to Article 16(1) or not was not necessary to decide in reaching the decision. In the Thomas's case, the appellant's case, was based on Article 46 and not on Article 16(4). In view of this, the task before the Court was to reconcile the conflicting claims based on Article 46 and Article 16(1). As Article 46 could not prevail over Article 16(1), the latter being a fundamental right, the only way out for the Court was to read the case for reverse discrimination in Article 16(1) itself.

In fact, the majority judgment in the Thomas's case rested on two fundamental assumptions: First, SCs and STs were not castes in ordinarily understood sense in view of their stark and desperate backwardness. Secondly, Article 16(1) being a facet of Article 14 permitted reasonable classification in favour of SCs and STs. In view of these two propositions which were basic to the majority judgment, there was hardly any occasion for the majority view to address the issue whether Article 16(4) was an exception to Article 16(1) or not. Therefore, in the Mandal Commission case, the Supreme Court's reliance on the Thomas's case in deciding the issue whether Article 16(4) was an exception to Article 16(1) or not was unwarranted.

The point should not be overlooked that background facts of the Thomas's case are materially different from those of the Mandal Commission case. In the former, the claim for reservation was modest whereas in the latter, the claim was quite ambitious one. In the Thomas's case what really prompted the majority view to uphold the reservation in favour of SCs and STs was the assumption that in view of their stark backwardness SCs and STs were a class in themselves. It was also realized that the Constitution itself made a classification in favour of SCs and STs in numerous provisions mandating special and favoured treatment to them. Krishna Iyer, J., passionately observed: To confuse this backward most social composition (SCs and STs) with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Article 16(2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the four-fold Hindu division is not to compromise with the acceleration of a castelessness enshrined in the sub-article."49 At another place in his judgment, he even went on to the extent of saying: "Not all caste backwardness is recognized in this formula. To do so is subversive of both Arts. 16(1) and (2). The social disparity must be so grim and substantial as to serve as a foundation for benign discrimination. If we search for such a class, we cannot find any large segment other than the Schedules Cases and Scheduled Tribes. Any other caste, securing exemption from Art. 16(1) and (2) ... will run the high risk of unconstitutional discrimination. If the real basis of classification is caste, marked as backward class, the court must strike at such communal manipulation. Secondly, the Constitution recognizes the claims of only harijans (Art. 335) and not of every backward class... no class other than harijans can jump the gunlet of "equal opportunity" guarantee. Their only hope is in Article 16(4)"50.

From the above observations made by Justice Krishna Iyer, it is clear that the stand taken by him that Article 16(4) is not an exception to Article 16(1) was with reference to the particular facts of the Thomas's case. This is also clear that he considered the claims of SCs and STs solely in terms of Article 16(1). In fact, in a later case of Akhil Bhartiya Shoshit Karmachari Sangh v. Union of India (Karamchari Sangh case)51, when J. Krishna Iyer, reversing his earlier stand took the view that SCs and STs were castes he had to concede that Article 16(4) was an exception to Article 16(1). Thus, if one goes by the judgment of J. Krishna Iyer, it is clear that the claim of any other backward class other than SCs and STs cannot be considered solely by reference to Article 16(1) and in that case he has to admit, like J Krishna Iyer, that Article 16(4) is an exception to Article 16(1).

In advancing the argument that Article 16(4) is not an exception to Article 16(1) the majority view delivered by BP Jeevan Reddy, J. (for himself and on behalf of MH Kania, J., and Venkatachaliah, Ahmadi JJ.) also based itself on the theory of reasonable classification permissible under Article 16(1). But on this point also the majority erred. In the Thomas's case, reasonable classification under Article 16(1) was permissible only because the majority view proceeded on the assumption that SCs and STs were not caste. No such claim was raised in the Mandal Commission case wherein the question of caste as a basis of reservation figured prominently. Further, in the Thomas's case, sufficient reasons were given to substantiate the argument that the Constitution itself makes a reasonable classification in favour of SCs and STs. No such attempt was made in the Mandal Commission case regarding OBCs. Majority view simply observed: "The backward class of citizens" are classified as a separate category deserving a special treatment in the nature of reservation of appointments/ posts in the services of the state. Accordingly, we hold that clause (4) of Article 16 is not an exception to clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1)."52 Needless to say, the above observation is not sufficient to justify a reasonable classification in favour of OBCs.

It is surprising that how the Supreme Court in the Mandal Commission case could ignore a long list of authorities53 which clearly favoured the view that Article 16(4) is an exception to Article 16(1) and took a contrary view basing itself on the Thomas's case wherein reservation under Article 16(4) was not in issue at all. Evidently enough, this aspect of the majority view in the Mandal Commission case is highly unsatisfactory and factually incorrect.

The discussion on principles of justice in Part II shows that reverse discrimination can be justified only when it is subordinate to the principle of equality of opportunity. This subordination can only be maintained when Article 16(4) is taken as an exception to Article 16(1). The same result would follow when the relationship between Articles 16(4) and 16(1) are examined in the context of constitutional scheme. As Seervai has argued several absurd results would follow if Article 16(4) is not considered as an exception to Article 16(1)54 In CA Rajendran's case,55 the challenge to the withdrawal of the reservations could not succeed because Article 16(4) was understood only as an enabling provision which did not confer any right on the citizens. If Article 16(4) is only an enabling provision how can it be a facet of Article 16(1) which confers fundamental right on the citizens. Clearly, the argument that Article 16(4) is not an exception to Article 16(1) is highly misconceived. Further, elaborating on the underlying idea in enacting Article 16(4) [Article 10(3) of the Draft Constitution], Dr. Ambedkar in his address to the Constituent Assembly, used the word exception which leads to only one conclusion that Article 16(4) is an exception to Article 16(1).56

Now coming to the next major issue raised in the Mandal Commission case whether caste can be a primary factor (or consideration) in identifying the backward class of citizens, it may be said that the majority view (consisting of BP Jeevan Reddy J, MH Kania CJ, MN Venkatachaliah, AM Ahmadi and S. Ratnavel Pandian, PB Sawant JJ) on this point is unsatisfactory as not being in conformity with the earlier decisions of the Supreme Court. But before examining the issue any further, it would be profitable to start with some preliminary points which have bearing on it.

1. The case arose out of the implementation of the Mandal Commission Report by the impugned OMs dt the 13th Aug. 1991 and the 25th Sept. 1991. The Mandal Commission was appointed in 1979 under Art. 340 of the Constitution to investigate the conditions of SEBCs. Its terms of reference included, inter alia, to evolve the criteria for defining the SEBCs and to examine the desirability 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. The Commission following the methodology used in several state lists of backward classes evolved several criteria for identifying SEBCs and used them mainly to identify castes as backward classes. The Commission was of the view that in the case of Hindus to start with castes was the most convenient (and also the most appropriate) way to identify SEBCs because in the country caste is also a social class or group. In this view of the matter in the Mandal Commission's Report, caste is a primary or dominant factor in identifying backward class of citizens.

2. It was expected from the Commission that its recommendations would be based on the well established constitutional norms in this regard. However, major premises of the Commission's report are not in conformity with the dominant judicial view. For example, the Commission's identification of castes as social classes deserving the benefit of the reservation is based on the assumption that it represents the dominant judicial trend. But cases relied on by the Commission in this regard instead of supporting its stand refutes the position that caste can be the dominant factor in identifying SEBCs. The Commission heavily relied on Minor P Rajendran v. State of Madras,57 State of AP v. P Sagar,58 and State of AP v. USV Balaram59. Of these, P Sagar's case found against the reservation of seats in admissions mainly on the ground that the reservations were made taking castes as a primary criterion and ignoring other relevant factors. As far as MP Rajendran's case is considered, that case relied on the decision of MR Balaji's case which had clearly held that caste cannot be dominant criterion in identifying SEBCs. The only case that purports to support the Mandal Commission Report to a certain extent is Balaram's case. But that case also relied upon the MR Balaji's case and did not intend to make any departure from major premises of the case. In fact, the Commission relied on the stray observations made by the Judges of the Supreme Court without thinking whether they actually bore upon the decision or not. It is astonishing that the same error was committed by the majority view in the Mandal Commission case which used isolated judicial observations devoid of their contexts.

3. Major premises of the Commission's Report, though against dominant judicial opinion went unexamined because legality of the Report was not in issue. Rather it was the above two OMs which were under challenge. Besides the relevancy of the criteria evolved by the Commission were also not in issue as not challenged by the petitioners.60

4. The correctness of the identification process by the Commission also could not be examined because it was found that it rested with the Commission appointed to evolve a suitable criteria to decide the matter finally61.

5. As it was not the Report but the two OMs which were in issue, there was presumption of constitutionality in favour of the OMs. However, it is submitted that the burden of proof should not have been placed on the petitioners because the Commission's Report was prima facie against the well-established constitutional norms.

The court's endorsement of the view that caste can be primary factor in identifying the backward classes is against the prevalent judicial opinion. MR Balaji's case, R. Chitralekha v. State of Mysore,62 KS Jayasree v. State of Kerala,63 P Sagar's case and the Balaram's case clearly held that though caste can be a relevant factor in identifying SEBCs, it cannot be the primary or dominant factor. In fact, the Supreme Court upheld the reservation made ignoring caste in Chitralekha's case observing that it was not obligatory to rely on caste in determining social backwardness. It is surprising, then, that the learned Judges who formed the majority, ignoring the long list of authorities, took the view that caste can be primary criterion in identifying "backward classes". In taking contrary stand much reliance was placed on the MP Rajendran's case, and KC Vasanth Kumar v. State of Karnataka64. Regarding the MP Rajendran's case it may be pointed out that though certain observations made by the Court support the view that if whole of the caste is found as socially and educationally backward "reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Art. 15(4)", it is equally true that the judgment as a whole followed Balaji's case and actually cited it with approval. If in the MP Rajendran's case Court upheld the state list of backward classes based on caste, it was so because there was a presumption of constitutionality in its favour which the petitioner failed to rebut. It was noted in the judgment that the state's explanation was not controverted by the petitioner. So caste-based classification of backward classes was not upheld on merit in that case. The tenor of the judgment in Balaram's case also followed Balaji's case. In fact, almost all the cases decided since MR Balaji's case on the point excepting a few did quote MR Balaji with approval. As far as the Vasanth Kumar's case is considered the observations made in that case are of only academic interests as there was no 'lis' in that case once the Judges allowed the Government of Karnataka to appoint a commission to evolve constitutionally valid criteria for identifying backward classes. Seervai has criticized the judgment severely to show how the five "judgments" are "not judgments at all" but a "nullity".65

Whatever may be the merit in subscribing to the view that the caste can be a primary factor in identifying backward classes, it may be submitted without prejudice that identification of a whole caste as a class while retaining the vice of a priori exclusion, is both overinclusive as well as underinclusive. It is overinclusive because it tends to benefit many who actually do not deserve preferential treatment. At the same time it is under inclusive as it excludes many other who really need preferential treatment.

In the context of caste vis-a-vis class issue, a crucial question relates to the level of backwardness needed to justify reservation in favour of any backward class. In MR Balaji's case five judges unanimously held that the concept of backwardness was not a relative in the sense that any class which was backward in relation to the most advanced class must have been included in it. Similarly, in Balaram's case, observations by the Court in favour of caste-based classification were made in reference to really disadvantaged section of the society whose backwardness was similar to SCs and STs. However, in the Mandal Commission case, the Court took contrary stand holding that the backwardness is a relative term. It advanced the view that backwardness must be judged by the general level of advancement of entire population of the country or the state as the case may be.66 However, the court did not give any hint as to the "general level of advancement" as it found the matter well within the reach of the Commission appointed by the government. In this way, the Court really begged the question of the caste vis-a-vis class debate. The issue is crucial one and should not be left open as it will lead to further litigations. To say the backwardness is a relative concept is to ignore the theoretical foundation of the reverse discrimination. As already shown, such discrimination is justified only on overriding considerations such as addressing past injustice or removing acute social deprivation. And it is hard to believe that a section of the society which is less advanced (in relative sense) is necessarily a socially deprived group.

V. CONCLUDING REMARKS

The discussion in Part II has shown that reverse discrimination is justified only when it is subordinate to equality of opportunity principle and is limited to minority of seats. Two irresistible conclusions follow when above propositions are seen in the context of our constitutional scheme. First, Article 16(4) is an exception to Article 16(1) and (2) and that caste-based reservation is justified only on overriding considerations such as compensating past injustice and/or to remove social and economic disabilities arising from caste-status. But the majority view in the Mandal Commission case, ignoring the dominant judicial opinion has based itself on the premises which are not in accord with the principles of justice. There is no warrant for the proposition that caste is a social class in India unless the level of backwardness required to justify reverse discrimination is specified. Besides, to equalize castes as a social class runs the added risk of making a classification which is both overinclusive as well as underinclusive.



1* BA, LLM, PhD (Delhi), Reader, Law School, Banaras Hindu University, Varanasi.

 438 US 265 (1978)

2 Id., at 407. The above statement by Justice Blackmun found its echo in the judgment of Justice BP Jeevan Reddy in Indra Sawhney v. Union of India, AIR 1993 SC 477 (The Mandal Commission Case) when he remarked : "One can not fight his enemy without recognizing him". Id. at 554.

3 For a debate on the legal issues involved in reverse discrimination, see generally, R Dworkin, A Matter of Principle (Oxford, 1986); B Errabbi, "Protective Discrimination : Constitutional Prescriptions and Judicial Perception, 10-11 Delhi Law Review 66 (1981-82), Helmunt Goerlich, "Preferential Treatment and Equal Access to Public Office" in MP Singh (ed.), Comparative Constitutional Law 449 (Eastern Book Company), 1989, HM Seervai, Constitutional Law of India : A critical commentary (Universal Book Traders, 1997), Archibald Cox, The Court and The Constitution (Asian Books, 1987), Parmanand Singh, "Some Crucial Problems of Tension between Equality and Compensatory Discrimination" in MP Singh (ed.), Comparative Constitutional Law, 336 (Eastern Book Company, 1989); Anirudh Prasad, Reservation Policy and Practice in India : A Means to An End (Deep and Deep, 1991); M.P. Singh, "Jurisprudential Foundations of Affirmative Action: Some Aspects of Equality and Social Justice", 10-11 Delhi Law Review 39 (1981-82).

4 On different applications of Justice, see generally, J.R. Lucas, On Justice (Clarendon Press, 1980).

5 Aristotle, The Nicomachean Ethics (Everymand ed.) at 10: quoted in W. Friedman, Legal Theory (Universal Law Publishing, 1999) at 21.

6 J.R. Lucas, supra note 4, at 164.

7 Bernard Williams, "The Idea of Equality", in Problems of the Self (Cambridge University Press, 1973): reprinted in Robert C. Solomon and Mark C Murphy (eds.), What is Justice?, 188, 191 (Oxford University Press, 2000).

8 Id., at 192.

9 Ibid.

10 Id., at 193.

11 Ibid.

12 Ibid.

13 Ibid.

14 Id., at 194.

15 John Rawls, Justice as Fairness (Universal Law Publishing, 2001) at 42.

16 Id., at 46.

17 Id., at 43.

18 Id., at 44.

19 Ibid.

20 Id., at 71-72.

21 Id., at 58.

22 Id., at 65.

23 Id., at 55.

24 Alan H. Goldman, Justice and Reverse Discrimination (Princeton University Press, 1979).

25 Id., at 6.

26 Id., at 7.

27 Id., at 232.

28 This is clearly stated in Article 334 that the reservation of seats in the House of the People and the Legislative Assemblies of the states shall cease to have effect after the expiry of sixty years (originally ten years) after the commencement of this constitution.

29 State of Kerala v. NM Thomas, AIR 1976 SC 490 (Thomas's Case), at 533, (per J. Krishna Iyer). See also, Parmanand Singh, supra note 3, at 345.

30 Supra note 2, at 504. However, Sawant J. in his concurring judgment disagreed. For sufficient reasons he held "... the expression 'weaker sections of the people' in Article 46 should not be mixed up with the expression 'backward class of citizens' under Article 16(4)."

31 Inserted by the Constitution (First Amendment) Act, 1951, Sec.2.

32 Inserted by the Constitution (Ninety-Third Amendment) Act, 2005.

33 Substituted by the Constitution (Seventh Amendment) Act, 1956. Sec. 29 and Sch. for the words "under any state specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State.

34 Inserted by the Constitution (Seventy-seventh Amendment) Act, 1995, Sec. 2 (w.e.f. 17-06-1995).

35 Inserted by the Constitution (Eighty-fifth Amendment) Act, 2001 dated 4th January, 2002 (deemed to have come into force on 17-06-1995, for the words "in matters of promotion to any class".

36 Inserted by the Constitution (Eighty-first Amendment) Act, 2000, Sec. 2 (w.e.f. 9-6-2000).

37 A similar provision was made in Section 298(1) of the Government of India Act, 1935 which runs as follows :

SECTION 298 Persons not to be subjected to disability by Reason of Race, Religion etc. (1) No subject of His Majesty domiciled in India shall on grounds of religion, place of birth, descent, colour or any of them be ineligible for office under the crown in India, or be prohibited on any such grounds from acquiring, holding or disposing of property or carrying on any occupation, trade, business or profession in India.

38 On this aspect, see Bombay v. Bombay Education Society, (1995) 1 SCR 568, 583-4 and the Mandal Commission case, supra note 2, at 586. See also HM Seervai, supra note 3, at 554.

39 (1951) SCR 525.

40 Id., at 532.

41 See HM Seervai, supra note 3, at 558.

42 Supra note 2, at 556

43 See Shiva Rao, The Framing of India's Constitution, Vol. III (Indian Institute of Public Administration, 1967).

44 Id., at 52.

45 CA Debates, Vol. VII, pp.701-702.

46 Ibid.

47 See, MR Balaji v. State of Mysore, (1963) Supp 1 SCR 439 (Balaji's case) [5 Judges unanimously held Art. 16(4) is an exception to Art. 16(1): Devadasan v. Union of India, (1964) 4 SCR 680 (Devadasan's case) [Majority view 4:1 held Art. 16(4) is an exception to Article 16(1); GM Southern Rly v. Rangachari, AIR 1962 SC 36 (Rangachari's case) [5 judges found Art. 16(4) as an exception to Art. 16(1); CA Rajendran v. Union of India, (1968) ASC 507 (Rajendran's case) [5 judges shared the same view as above; Champakam's case (an unanimous judgment of 7 judges) also suggests the same thing. The impugned "Communal G.O." was held invalid for want of corresponding provision of Art. 16(4) in Art 15 (unamended).

48 Per Mathew, J., supra note 29, at 519.

49 Supra note 29, at 535.

50 Id., at 537.

51 (1981) 2 SCR 185.

52 Supra note 2, at 539.

53 See Supra note 47.

54 See HM Seervai, supra note 3 pp. 555-58.

55 Supra note 47.

56 See, supra note 45.

57 AIR 1968 SC 1012 (MP Rajendran's case).

58 AIR 1968 SC 1379 (P Sagar's case).

59 AIR 1972 SC 1375 (Balaram's case).

60 Supra note 2, at 561.

61 Ibid.

62 AIR 1964 SC 1823.

63 (1977) 1 SCR 194.

64 1985 Supp SCC 714.

65 See HM Seervai, supra note 3, pp. 623-25.

66 Supra note 2, at 561.





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