AT the outset it should be stated that it is indisputable that reservation in favour of Other Backward Classes (OBCs for short) namely other than Schedule Castes and Scheduled Tribes as permissible under clause (4) of Article 15 in the matter of admission to educational institutions and under clause (4) of Article 16 in the matter of recruitment to civil posts under the Union and the State is the policy of the Constitution of India. But the question is whether the classification of backward classes has to be made on the basis of caste or any rational basis other than caste or religion.
In connection with decennial population census, a few demanded that there should be caste based census as they consider that backward classes should and could be made only on the basis of caste. But, this demand has become highly controversial on the ground that it is unconstitutional as both Article 15 and 16 prohibit discrimination as between citizens interalia on the ground of religion and caste. Those who support caste based census does so in the belief or on the ground that caste based census would be helpful and furnish a valid basis for reservation of civil posts in favour of OBCs who are inadequately represented in the State service as permissible under clause (4) of Article 16 and in educational institutions as permissible under clause (4) of Article 15 of the Constitution. Those who oppose does so on the basis of the wording of clause (1) of Article 15 and clause (2) of Article 16 which prohibit discrimination on the basis of caste. Despite the opposition to caste based census within the UPA, and also by a few others, the Union Government which was in a dilemma for some time has ultimately yielded to the demand and decided to go ahead to undertake caste based census.
This decision is highly divisive in nature and is sure to have far reaching consequences on the unity and integrity of the people and on the feeling of fraternity among the citizens as it encourages and increases caste consciousness which has already inflicted sufficient injury in the democratic process. Therefore, it has become absolutely necessary to examine the object and purpose of such census and as to whether caste based census is necessary to provide reservation in favour of OBCs either under Article 15(4) or 16(4) of the Constitution on the basis of caste?
The founding fathers of the Constitution who were statesman, and who had an in-depth knowledge about the existence of disparity among different classes of people in the country and who made charter of equality as an element of the basic structure of the Constitution, which cannot be altered even by a constitutional amendment, in their wisdom felt convinced that as all citizens are not similarly situated, in order to ensure equality, it is absolutely necessary to moderate the disparity among different sections of citizens, by providing reservation in employment under the State and in respect of various other matters in particular in the matter of admission to educational courses, which should be both qualitatively and quantitatively reasonable so as to do justice to such classes of persons who are unequally situated. Accordingly, the enabling power to provide reservations were made in the following manner.
(A) in favour of Scheduled Castes and Tribe, as declared by President of India, who undoubtedly belonged to backward class for historical and sociological reasons,
(B) in favour of Other Backward Classes as identified by the State.
Thus, provisions of the Constitution is pragmatic and emphatic that reservation on the basis of caste and tribe may be provided only in favour of those included in the SC/ST list. But, as regards other backward classes, they should be identified on any rational basis, other than castes, as discrimination on the ground of caste is prohibited by clause (1) of Article 15 and clause (2) of Article 16.
Despite such specific prohibition in Article 15(1) and 16(2), states proceeded to make reservation only on the basis of castes. Constitutional validity of backward classes made on the basis of caste by the Mysore State came up for consideration before a Constitution Bench of the Supreme Court as early as in 1963 in the case of MR Balaji vs. State of Mysore, (AIR 1963 SC 649). The Supreme Court considered its validity of both on qualitative as well as quantitative basis and held as follows:-
(A) classification of backward classes cannot be made solely on the basis of caste,
(B) reservation in the nature of things cannot exceed 50 per cent .
“We have considered both the orders in the light of the report and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification of the socially backward classes of citizens made by the State proceeds on the consideration only of their cases without regard to the other factors which are undoubtedly relevant. If that be so, the social backwardness of the communities to whom the impugned order applies has been determined in a manner which is not permissible under Art. 15(4) and that itself would introduce an infirmity which is fatal to the validity of the said classification. (para-25)
“A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4) must be within reasonable limits. ………. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. (para-34)
This is the land mark judgment and an important milestone in our constitutional history and has been reiterated after 30 years by a constitution bench of nine judges in the case of Indra Sawhney [1992 Supp. (3) SCC 217] The Supreme Court has ruled in various judgments, in view of Article 15(1) and 16(2) that backward classes cannot be made only on the basis of caste. However, if in a given case most of the persons belonging to any caste are found to be educationally and socially backward, in such a case, name of that particular caste can be used only for purpose of identification. Further, as even in castes identified as backward class such of the persons who have become forward should be excluded calling them ‘creamy layer’ who do not really belong to backward class.
Now, it is a matter of common knowledge on account of various economic, educational and social development programmes undertaken by the Centre and the states including eleven five year plans and also reservation provided under Articles 15(4) and 16(4), substantial percentage of persons belonging to various castes are no longer backward. Therefore, if the mandate of Article 15(4) and 16(4) should be obeyed, backward classes have to be identified on rational basis other than religion or castes.
In fact as early as in 1964, in Chitralekha’s case [1964 (6) SCR 368] the Supreme Court has observed as follows:
“What we intend to emphasize is that under no circumstances a “class” can be equated to a “Caste”, though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15(4) of the Constitution, it does not vitiate the classification if it satisfied other tests”. (page-389)
In the case of Indra Sawhney the nine judge bench of the Supreme Court which reiterated that the classification of OBCs cannot be made solely on the basis of caste also considered the question as to whether the backward class can be identified on the basis of occupation/income without reference to the case and held as follows:-
“In Chitralekha this court held that such an identification is permissible. We see no reason to differ with the said view in as much as this is but another method to find socially backward classes. Indeed, this test in the Indian context is broadly the same as the one adopted by the Mandal Commission…” (para-800)
The principle laid down by the Supreme Court in its majority judgment in Indra Sawhney’s case clearly indicates that the identification of backward class could be made on the basis of occupation which would cover not merely Hindus who are divided into various castes but also to minority religion such as Muslims and Christians. Having regard to the clear indication flowing from the provisions of the Constitution in Article 15(4) and 16(4) empowering reservation only in favour of backward classes as distinct from castes, the only way of faithfully implementing the provisions of the Constitution both having regard to Article 15(4) and 16(4) read with 15(1) and 16(2) could be to identify backward class on the basis of occupation such as (i) agriculturists, (ii) agricultural labourers, (iii) occupation involving manual labour, (iv) sweepers, (v) workmen as defined in Industrial Disputes Act and persons doing manual labour in unorganised sector and so on. After making such a classification as above, it is also necessary and reasonable to prescribe income limit by providing that only those persons among them whose family income is less than the minimum prescribed be categorised as backward class. Such a classification on the basis of occupation and income test would be inconformity with the mandate of the Constitution.
The Hon’ble Supreme Court has also held in para-847 of the judgment in Indra Sawhney case that there is necessity to constitute a permanent statutory body to examine the correctness of classification made from time to time. But unfortunately, it has not been done. Infact, Article 340 of the Constitution expressly provides for appointment of a Commission to investigate the condition of backward class. This article empowers the Commission so appointed to investigate the condition of socially and educationally backward classes and to make recommendations to the Union Government or the State Government as the case may be in order to enable them to take steps which are necessary to remove their difficulties and confer the benefits that should be extended to them in order to get over the problems with which they are facing. The earlier the Union and the State Governments take action to identify backward classes on rational basis and give up the caste, that would be better in the interest of the nation.
The very principle of excluding the creamy layer as laid down in the case of Indra Sawhney and reiterated in Ashok Kumar Thakur (2008 (6) SCC 1) indicate that in order to make reservation valid under Article 15(4) and 16(4) that the caste by itself without exclusion of creamy layer cannot be identified as backward class. This principle laid down in Indra Sawhney’s case (1992 Supp. (3) SCC 217) and again reiterated in the second case of Indra Sawhney Vs. Union of India (2000 (1) SCC 168) make it obligatory for the Union and the States to identify the backward class on a rational basis which as pointed out by the Supreme Court could be validly done on the basis of occupation.
Therefore, it is essential that identification of OBCs must be totally disconnected from castes in order to make the backward class classification in terms of the Constitution. If this is done, census on caste basis would become unnecessary in order to do justice to OBCs in terms of the constitutional position.
(The writer is Member of Parliament Rajya Sabha, and Former Chief Justice of Punjab and Haryana High Court and former Governor of Jharkhand and Bihar)