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Protective Discrimination in Favor of Backward Classes Under the Indian Constitution

The formula that every man to count for one and no one to count for more than one seems to form the heart of the doctrine of equality. The assumption therefore is that unless there is sufficient reason not to do so, it is natural or rational to treat every member of classes equally. But to state the principle in this way leaves open crucial issues.

Thus, it may be rightly objected that unless some specifies sense is given to sufficient reason the principle can be reduced to a trivia1 methodology. Again, since all entities are members of more than one class, any kind of behavior can be safely subsumed under the general rule enjoying equal treatment, which can reduce this rule to emptiness. These problems can be met only by making clear what reasons are sufficient and why and which attributes are alone relevant and why. This will depend upon the outlook and scale of values of different persons and the purposes of a given association or enterprise, in terms of which alone general principles can retain significance.

Geometrical equality therefore requires rational classification. This principle forms the basis of the guarantee of equality as enshrined and administered in terms ofArt.14of the constitution. The problem becomes all the more acute where the guarantee of equality is fastened upon a society which is usually divided among groups with varying potential of power, privilege and prestige. Classification here, has not to meet only the needs of physical ends and psychological differences but also of tradition generated attitudes, patterns and divisions.

This solution aspect of equality lies in the case of the constitutional provisions relating to protective discrimination in favor of backward classes. Art.15 (4) and16 (4)envisage specific departures from the norms of equality to fasten the educational and job needs of the weaker sections of society. They are exceptions from apparent formula of equality to achieve real equality.

Art. 1 (4) reads as: the state is not prevented from making any special provisions for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Article 16 (4) reads: The state may make provisions for reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the state, is not adequately represented in the services under the state.

The term backward classes has been used in the same sense as in Art. 15 (4) and includes scheduled castes and scheduled tribes. Those provisions form the crux of the egalitarian resolution sought to be sponsored by the framers of the constitution through the medium of fundamental right of equality. They represent the positive dimension of the claim of equality which enjoying the state 'to do' rather than prohibit it from doing something.

Such positive obligations obviously have limited application and not obligatory, depending much on the available resources and their allocation to this objective in the context of conflicting claims and demands secrecy, gratification and fulfilment. The biggest hurdle is lack of resources. Another problem arises because of the claims of ‘merit’ and ‘efficiency’.

A third problem arises because of counter dictates of 'equality' itself best the protected may not in term become the privileged. Finally, several attitudes hardened by long existing customs and traditions prose insurmountable obstacles. The British had tried to drive a wedge among the majority community in this country by pleading for additional safeguards for the depressed classes that this would have been catastrophe is obvious, and only the political sagacity of Mahatma Gandhi should avoid the pit fall.

The compromise thought about the depressed classes, were assured of preferential treatment.The Government of India Act 1935went a little in this direction. The measures for upliftment of backward classes received ample consideration in the Constituent Assembly. The Constituent assembly gave concessions, privileges and certain rights because they are backward socially, economically and Politically.

This Article is a modest attempt to examine the functioning of the constitutional provisions for privileged treatment of backward classes in the light of the constitutional vision for their upliftment.

Position of the Depressed Classes in the Past

The Indian Round Table Conference

Mr. Ramsay MacDonald, the then Prime Minister of England gave an statement before the final plenary session of the Indian Round Table Conference in 1931, said that there is still difference of opinion for instance as to the composition and powers of the Federal Legislature, and I regret that owing to the absence of a settlement of the key question of ‘how to safeguard minorities under a responsible central Government’, the conference has been unable to discuss effectively the nature of the Federal executive and its relationship with the Legislature.

But a decision of the communal problem which provides only for representation of the communities in the legislature is not enough to secure what I may call natural rights, when such provisions have been made, Minorities will still remain minorities, and the constitution must therefore contain provisions which will give all creeds and classes a due sense of security that the principle of majority government is not to be employed to their moral or material disadvantage in the body politic.

Karachi Resolution

The socio-economic provision in the Karachi Resolution went on to influence the Constituent Assembly in drawing up Part IV of the Indian Constitution–the Directive Principles of State Policy. The Congress was of opinion that in order to end the exploitation of the masses, political freedom must include real economic freedom of the starving millions. Therefore, so that the masses may appreciate what Swaraj as conceived by the Congress will mean to them, it is desirable to state the position of the Congress in a manner easily understood by them.

The Congress therefore declares that any constitution that may be agreed to on its behalf, should include fundamental rights, religious neutrality, Labour to be freed from serfdom, Protection of women workers, Prohibition against employment of children of school going age in factories, right of labour to form unions to protect their interests with suitable machinery for settlement of disputes by arbitration and free Primary education.

Special claims of the depressed classes

The Constitution shall declare invalid any custom or usage by which any penalty or disadvantage or disability is imposed upon or any discrimination is made against any subject of the state in regard to the enjoyment of civic rights on account of untouchability. Generous treatment in the matter of recruitment to public service and the opening of enlistment in the police and Military service. The Depressed classes in the Punjab shall have the benefit of the Punjab Land alienation Act extended to them and many other special claims were made in order to protect the interest of backward classes.

Poona pact

The Poona Pact was an agreement between Mahatma Gandhi and Dr BR. Ambed karon behalf of depressed classes and upper caste leaders on the reservation of electoral seats for the depressed classes in the legislature of British India government in 1930. It was made on 24 September 1932 at Yeravda Central Jail in Poona, India. It was signed by Ambedkar on behalf of the depressed classes and by Madan Mohan Malviya on behalf of the upper caste Hindus and Gandhi as a means to end the fast that Gandhi was undertaking in jail as a protest against the decision made by British Prime Minister Ramsay MacDonald to give separate electorates to depressed classes for the election of members of provincial legislative assemblies in British India.

1st Amendment of the Constitution

The constitution of India was first amended in 1951for the welfare of scheduled castes, tribes and backward classes and also empowers the state to undertake the affirmative action for the advancement of any socially and economically backward classes or categories of schedule castes and schedule tribes by restricting the application of fundamental rights.

According to B. R Ambedkar I will begin with clause 2 of the Bill proposes to amend Art.15. The necessity for the amendment of Art.15 has risen on account of the judgments recently delivered by the Supreme Court in two cases which came up before them from Madras state. In the case ofVenkataramanthe article involve was Art.16 clause (4) and in the case ofThe State Of Madras vs Srimati Champakam,the article involve was article 29(2).

In one case the question involved was the reservation of backward classes in public service, and in other case, the question involved was the reservation for backward classes in educational Institutions. It was said by the Supreme Court that Art.29 clause (2) not have a saving clause like clause 4 attached to Art.16. As House will remember under clause 4 of Art.16, a special provision is made that Art.16 shall not stand in the way of the government making a suitable provision for the representation of backward classes in the services.

Such a provision of course is not to be found in Art.19. With regard to Art.16 clause (4) the Supreme Court came to the conclusion that it involved discrimination on the ground of caste and therefore, it was invalid. I cannot help saying that I find this judgment to be utterly unsatisfactory.

He further said that my view is that in Art.29 (2) the most important word is only no discrimination shall be made on the ground only of race, religion or sex. The word 'only' is very important. It does not exclude any distinction being made on grounds other than those mentioned in this article and I respectfully submit that the word 'only' did not receive the same consideration which it ought to have received.

Provision for Reservation in Legislature

  1. Reservation in the House of the people:

    The Constitution of India treats the scheduled castes and the scheduled Tribes in India with special favor and affords them some safeguards. The scheduled castes are the depressed sections of the Hindus who have suffered for long under social handicaps and thus need special protection and help for the amelioration of their social, economic and political condition. The constitution provides some reservation for the scheduled caste and scheduled tribes in the legislature.

    Article 330of the Constitution lays down as follows:
    1. Seats shall be reserved in the House of the people for the scheduled castes, the scheduled tribes except the scheduled tribes in the tribal areas of Assam and the scheduled tribes in the autonomous districts of Assam.
       
    2. The reservation for Lok Sabha seats for the scheduled castes and scheduled Tribes has to be made in each state and union Territory on population basis. The number of Lok Sabha Seats reserved in a state or union territory for such castes and tribes is to bear, as nearly as possible, the same proportion to the total number of seats allotted to that state or union territory in the Lok Sabha as the population of the scheduled castes and the scheduled tribes in the state or union territory bears to the total population of that state or the union territory.

      Shri V. V. Giri vs Dippala Suri Dora And Others on 20 May, 1959
      The Supreme Court held that a scheduled tribe candidate can contest an election for both the seats reserved as well as open. At the same time, it also held that a non-scheduled tribes candidate residing in a constituency for which there is a reserved seat will be unable to contest for election to that seat. It may however be noted that elections are to be held on the basis of a single electoral roll, and each voter in the reserved constituency is entitled to vote.

      There is no separate electorate. It is not for the scheduled castes and the scheduled tribes only to elect their representatives. The system is that though a person belonging to such castes and tribes is to be elected to a reserved seat, he is to be elected by all the voters in the constituency. This has been done with a view to discourage the sharpening of differentiation between the scheduled castes and scheduled tribes from other people and to lead to their gradual integration in the main stream of national life.

      In 1961, parliament enacted legislation providing for the division of two members constituency and thus a non-scheduled caste person will be debarred to contest election to a reserved seat even though residing in that constituency. It further held thatS.54 (4) of the Representation of people Actdoes not opposed Art. 330 of the constitution when it is admitted that a scheduled tribe candidate could compete for a general seat. Also, a member of the scheduled castes or the scheduled tribes is not debarred from contesting any seat other than the reserved one.

      Out of 543 seats reserved for the members of the House of Parliament, 84 seats are reserved for scheduled caste and 47 for scheduled tribes! In 2014 general election, only one candidate from scheduled castes got elected for parliament from the general seat.
       
  2. Reservation in the Legislative Assembly:

    Article 332 lays down as follows:
    Seats shall be reserved for the scheduled castes and the scheduled tribes, except the scheduled tribes in the tribal areas of Assam, in the legislative assembly of every state. Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the state of Assam. The number of seats reserved for the scheduled castes or the scheduled tribes in the Legislative Assembly of any state under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the scheduled castes in the state or of the scheduled tribes. The total number of seats in the legislative assemblies of the states and union territories is4121, and reserved seats are 1101(approx.). In Nagaland 57 out of 60 are reserved and in Mizoram 39 out of 40 are reserved (as per sources).
     
  3. Extension of the term of Reservation

    Art. 334 deals with the reservation of seats to scheduled castes and scheduled tribes. Originally Article 334 provided for the reservation of seats to the scheduled castes and scheduled tribes for a period of ten years from the date of commencement of the constitution but by the Constitution right Amendment 1959, the duration was then increased for ten years more, and recently the period of reservation was further extended to 2030 by the104th Amendment.

    It has been felt that the handicaps and disabilities under which these people function have not yet been removed and that they need this reservation for some more time so that their condition may be ameliorated and they may catch up with the rest of the nation. Thus, we find that the reservation for the scheduled castes and scheduled tribes’ candidates which was originally to cease after ten years from 26th of January 1950 will now be valid till 2030.
     
  4. Special officer for enforcement of safeguards:

    Art. 338lays down that there shall be a special officer for the scheduled castes and scheduled tribes to be appointed by the President. It further lays down that it shall be the duty of the Special officer to investigate all matters relating to the safeguards provided for the scheduled castes and scheduled tribes under this constitution and report to the President upon the working of those safeguards at such intervals as the President may direct and the President shall cause all such reports to be laid before each House of Parliament.
     
A number of safe-guards have been provided to schedule castes and schedule tribes under the constitution and these safe-guards have apparently been provided with a view to facilitate the implementation of directive principles contained in Art.46 of the Constitution which reads as:
The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled caste and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation.

Each state having scheduled areas has tribal Advisory Council consisting of not less than twenty members three fourth of whom are to be representatives of the scheduled tribes in the state Legislatives Assembly. Such Tribes Advisory Councils have been established in Andhra Pradesh, Bihar, Gujarat, Maharashtra, Madhya Pradesh, Orissa, Rajasthan, Tamil Nadu and West Bengal

Caste as Criterion Factor

The operational criteria for protective discrimination are embodied in the phrase backward classes. The constitution of India neither defined 'backward classes' nor prescribed any method or agency for designating such classes. Different provisions of the constitution use different ways to identify such classes. Art. 16 (4) refers merely to any backward class of citizens. Art.15 (4) restricts its protection to socially and educationally backwardness.

Art. 46 uses the expression weaker section of society. Again Art.15 (4) specifically backward classes of citizens, the scheduled castes and scheduled tribes. Art.16 (4) refers to any backward class of citizens omitted specific reference to the scheduled castes and scheduled tribes tillNagaraj and others v/s Union of India, which placed strict conditions on when the State could grant a SC/ST reservation in promotion.

In the Constituent Assembly there was a demand for precise definition of the term Backward. Mr. H.N. Kunzrud eplored the fact that the word backward is not defined anywhere in the constitution. He pleaded that whether any class backward or not should not be left to the law courts. T.T. Krishnamacharya considered the term to be very vague and susceptible to varied interpretation. Quite a few members pleaded for the substitution of the word scheduled caste for backward classes in Art.16 (4) as the latter term was very vague. Mr. K.M. Munshi's classified that any backward class in Art.16 was intended to mean not only the backward classes but also the scheduled castes and the scheduled tribes.

Mr. P G Shah, a member of the Backward class commission (1953) said: The economic factor in determination of social backwardness should have received greater emphasis. In my opinion the more emphasis should be given to economic backwardness, this is the most important criterion of social backwardness of communities and collected more definite data about it
There was much to be said about the inadequacy of Commissions criteria.

It omitted the non-caste-oriented groups of the population like Muslims and Christians. It also omitted such low-caste Hindus who converted to other religion particularly Buddhism to avoid the slur of Hindu parochialism. It also over looked the non-coeternity of caste and occupational groups in modern India. Poverty knows no caste banners and the two are not always together. The Commission was mesmerized by the historical evolution of castes occupational groups and was scheduled to that.

In 1957, when the Constitution was amended to add clause 4 in Article 15, to empower the state to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes, some members moved amendments to add economically with the words socially and educationally. Mr. Nehru opposed the amendment because it would not be in harmony with Art. 340 which used the words socially and educationally backward classes. Nehru's reply was significant because it reaffirmed the view that backward class is one which is backward socially, economically and educationally.

Persisting casteism and Affirmative action

It is common knowledge how, due to distinct historical happenings, a major group of our society has been left behind in the race for development that the Indian Community, in general, has achieved so far.

The will practice of untouchability, which has been rampant in our society until a couple of decades back and, in fact, is still found to exist at places even in its very crude form- particularly in the rural areas of the country- has resulted in a number of disabilities for the victims of this practice, who were for long treated as untouchables and are known as the scheduled castes.

According to the census of 2011, about 201 million people, comprising nearly 16.63% of the total population of the country, belong to this group. In order to bring up the scheduled castes to the general standards in the country in a very short period, it was absolutely necessary to undertake special measures to ensure all possible efforts made for the social, economic, educational and political development of this backward group.

The framers of our constitution, therefore, correctly thought of providing specific safeguards for the purpose in the constitution itself. The intention of allowing these safeguards is crystal clear from Art. 46 of the Constitution, which contains an important Directive Principle of State Policy. This Article reads The State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, the scheduled castes and the scheduled tribes shall be protected from social injustice and all forms of exploitation. As a result, a number of other safeguards for the general development of this community have been provided in the constitution. These safeguards are contained in articles 15, 16,17, 23, 25,29,38, 164,320, 330, 532, 334, 335 and 538.

Conclusion
Who can deny that entry into government services is at once a privilege and an opportunity for affording economic development and social status to any backward people? Apparently, keeping in view this important factor, our constitution provides under Art. 335 that the claims inter-alias, of the member, of the scheduled castes shall be taken into consideration, consistently with the maintenance of efficiency of administrations, in the making of appointments to services and posts with respect to the affairs of the union or of a state.

Apparently, one cannot develop as a nation when large section of the society remains far behind in the race of development and, among other things, is not enabled to enjoy equality of opportunity granted as a fundamental right to all citizens of India in the field of employment, under article 16 (1) of the Constitution. This can be done by providing them all possible props and supports to enable them, to run shoulder to shoulder with their more fortunately placed brethren, in the race of national development. Unless this truth becomes clear to all concerned, we cannot afford to provide equal opportunities, inter alia, in the matter of providing employment to all alike.

Let us hope that the authorities concerned will rise to the occasion and ensure an accelerated intake of these people in government services and posts, by plugging all Loop-holes which have been pointed out in the various annual Reports of the Commissioner for Scheduled Castes and Scheduled Tribes.

References:
  1. S.A. Venkataraman vs The Union of India And Another on 30 March, 1954
  2. Shri V. V. Giri vs Dippala Suri Dora And Others on 20 May, 1959
  3. State of Kerala & Anr vs N. M. Thomas & Ors on 19 September, 1975
  4. The State of Madras vs Srimathi Champakam. on 9 April, 1951
  5. Indra Sawhney Etc. vs Union Of India And Others, Etc. on 16 November, 1992
  6. Nagaraj and others v/s Union of India
Written By:
  1. Tahiruzzama - 3rd Year Law Student At Faculty Of Law, Aligarh Muslim University And
  2. Ibraheem Khan - 3rd Year Law Student At Faculty Of Law, Aligarh Muslim University
    Email: [email protected]/ Ph no: 8299265057

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