The formula that every man to count for one and no one to count for more than
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
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
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
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
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
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�
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
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.
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
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.
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
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:
- 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.
- 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
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
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.
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).
Extension of the term of ReservationArt. 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.
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.
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
people, and, in particular, of the scheduled caste and the scheduled tribes, and
shall protect them from social injustice and all forms of exploitation.
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
. 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
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.
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.
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.
- S.A. Venkataraman vs The Union of India And Another on 30 March, 1954
- Shri V. V. Giri vs Dippala Suri Dora And Others on 20 May, 1959
- State of Kerala & Anr vs N. M. Thomas & Ors on 19 September, 1975
- The State of Madras vs Srimathi Champakam. on 9 April, 1951
- Indra Sawhney Etc. vs Union Of India And Others, Etc. on 16 November,
- Nagaraj and others v/s Union of India
- Tahiruzzama - 3rd Year Law Student At Faculty Of Law, Aligarh Muslim
- Ibraheem Khan - 3rd Year Law Student At Faculty Of Law, Aligarh Muslim
Email: [email protected]/ Ph no: 8299265057