28 June, 2008

Why bend backwards?

By Anirudh Sharma

There is no need to amend the Constitution to provide reservation for the economically backward classes since it has never prohibited it. Even the Supreme Court in its several rulings has never principally objected to this.

On September 28, 1962, Justice Gajendragadkar, in the MR Balaji vs State of Mysore case, unambiguously ruled, "The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat."

On April 10, 2008, Chief Justice KG Balakrishnan seemed to repeat the findings when he observed, "All the Brahmins are not engaged in highly respectable employment, nor are all very wealthy. It may even be that some Brahmins may be servants of members of a lower caste, or it may also be so that the personal servant of a rich Brahmin may be a poor Brahmin."

This formulation of social backwardness, along with poverty, makes a very defensible criteria for socio-economic backwardness, which will pave the way for economically backwards to get the benefits of affirmative action programmes, including reservation, without any Amendment to the Constitution.

Reservation for the economically backwards, who have fallen behind in society because of their parents working as sweepers, rag-pickers, rickshaw-pullers, without reference to caste is intrinsically justified in our constitutional scheme. Those who point to the necessity of constitutional Amendment to this effect need a reality check.

The doomsayers of affirmative action for a so-called forward caste sweeper's son take recourse behind the judgement in the Mandal Commission case. It will be advisable for those doomsayers to take a peek at the constitutional history of India and refer to the judgement of the apex court in the R Chitralekha vs State of Mysore case where backward classes were identified on the basis of occupation-cum-income without reference to caste and the identification was held to be constitutionally valid.

On this judgement, Justice Jeevan Reddy, writing the majority judgement, observed, "In Chitralekha this court held that such an identification is permissible. We see no reason to differ with the said view inasmuch as this is but another method to find socially backward classes."

Justice Reddy went a step further to illustrate: "For example, agricultural labourers, rickshaw-pullers/drivers, street-hawkers, etc, may well qualify for being designated as Backward Classes." Hence, it will be misnomer to say that Mandal prohibits reservation of ground predominantly on economic backwardness. On the contrary, it allows reservation for the socially and economic backwards, where backwardness can be identified on the lines of Justice Gajendragadkar's definition.

Another contribution of Justice Reddy's judgement in the Indra Sawhney or the Mandal judgement, which may qualify as the most misunderstood judgement of its time, is the mandate that if the identification process begins with caste, "it does not mean that one can wind up the process of identification with the castes. Besides castes (whether found among Hindus or others), there may be other communities, groups, classes and denominations which may qualify as backward class of citizens". These communities will, of course, include agricultural labourers, rickshaw-pullers/drivers, street-hawkers, etc, as illustrated by Justice Reddy.

However the aforementioned mandate of the majority judgement in Mandal case was not followed till today and the affirmative action/reservation programme started and ended with caste, casting caste identities in iron mould. To repair this damage and restore equality, some justice had to be done.

The Bench headed by the Chief Justice has addressed the grievance of the economic backwards. Justice Pasayat and Justice Thakker lay down, "If the creamy layer has to be excluded, the economically backward classes have to be included. That would be social balancing and that would be giving true meaning of the objectives of the Constitution. Social empowerment cannot be and is certainly not a measure for only socially and educationally backward classes. It also has to be for the socially and economically backward classes."

However, the question that arises for consideration is: Will our executive toe the line of the law as declared? Justice Pasayat leaves no ground for that while writing his verdict, "To strike the constitutional balance it is necessary and desirable to earmark certain percentage of seats out of permissible limit of 27 per cent for socially and economically backward classes." This leaves no room for doubt anywhere in the executive's mind that it is mandatory.

The Chief Justice has also ruled that "determination of backward class cannot be exclusively based on caste. Poverty, social backwardness, economic backwardness, all are criteria for determination of backwardness". Justice Balakrishnan, while allowing a classification based on poverty and economic backwardness, has done a social balancing which had long gone astray, contrary to the judgement of the Supreme Court in the Indra Sawhney case.

There had always been a constant fear of reverse discrimination in India, which is justified to a certain extent. However with the current judgement of the Supreme court, these fears must be washed away. The apex court, while rejecting the plea that caste can be the sole or dominant criteria of backwardness or that classification of backward classes cannot be exclusively based on castes, has strengthened the belief of millions of Indians that India shall be a Union of States as per Article 1 of the Constitution and not a federation of castes, as desired by some.

As for the demand to amend the Constitution to provide reservation for the economically and socially backward people, it is not required. After all, the Constitution has never prohibited reservation for the economically and socially backward classes, nor has the apex court in its rulings right from times of its judgement in the Chitralekha case ever done so.

The writer is a lawyer associated with Youth for Equality. The article was originally published in the Daily Pioneer.

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