Perspective of Reservation/Representation for Backward Classes:

The policy of reservations is being used as a strategy to overcome discrimination and act as a compensatory exercise. A large section of the society was historically denied right to property, education, business and civil rights because of the practice of untouchability. In order to compensate for the historical denial and have safeguards against discrimination, we have the reservation policy and this is termed as affirmative discrimination. To have the right overview, the following note being a collection from various sources including own description is detailed for the use of students pursuing their legal study.

To understand the Policy of Reservation to backward castes in proportion to the number of their castes the following points need a through study and a dispassionate debate.

1.      The background as to why the reservation was felt necessary with reference to Poona Pact 1932 sequel to Communal Award 1931.

2.    The reference of Separate Electorate and its relation with reservation or representation.

3.      Various representations from Backwards classes before British Government and the August Offer of the British Government on transfer of power.

4.      Consequent to Simon Commission report in 1927 and other representations from Backward castes, the demand of Separate Electorate (which was already in place for Muslims and Sikhs, was also agreed by the British Government for SCs and STs in Communal Award).

5.      Consequently, the happening of Round Table Conferences in 1930 and 1931 in London to give hearing to the demands of the backward classes for the very purpose before transferring the power from British India to Indian Dominion.

6.      In the backdrop of the above, it is required to know the reservation/ representation available in the Constitution of India being the part of fundamental rights in the name of equal opportunity for all by way of handholding (positive discrimination) to those who have been deprived of the same to enable them to attain the equality including to get rid of their sufferance of sinful untouchability which is abolished vide Art 17 of the Constitution.

7.      Reservation for backward castes is  laid down   in Article 15 and elsewhere in the Constitution.

Here to take forward the above through the following columns needs patient delving. We should understand that the Constitution of India came in place in Nov 1949 and just in one year a lot of confusions in mind of public and in the mind of Judiciary cropped up. The reasons have to be analyses honestly as the SC, STs and other backward castes who are aborigines of this land and have remained persecuted for centuries together during the reign of invaders who either had come to our country for commercial purpose and settled here permanently.

After independence in 1947 to bring the persecuted castes  on equal footing certain measures were provided in constitution which do not appear to have been implemented in honest way and consequently even today such communities are the items of hatred and ridicule.

This is the demand of hour that incase we wish to realise INDIA  a rightly developed state and a welfare State it will be possible only when all work and all hold responsibility. Reservation in place of separate electorate was thought to be  one way to attain the object of  twin purpose, development of particular individual and also that of State  in turn and thus it was incorporated in the Constitution of India.

The stages through which the reservation meandered in just nearly one year after its inception in Nov 1949 to 1951  is given in the form of  a land mark decision of the Supreme Court of India as under:

On November 25, 1949, Dr BR Ambedkar sounded a grave warning in the Constituent Assembly: "On January 26, 1950, we will have equality in politics and inequality in social and economic life. We must remove this contradiction at the earliest moment, or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up." To guard against such an explosion of discontent, the Preamble of the Constitution clearly spells out the objectives of securing "to all its citizens JUSTICE, social, economic and political" as well as "EQUALITY of status and of opportunity." The system of reservation in India comprises a series of measures, such as reserving access to seats in the various legislatures, to government jobs, and to enrollment in higher educational institutions. The reservation nourishes the historically disadvantaged castes and tribes, listed as Scheduled Castes and Scheduled Tribes (SCs and STs) by the Government of India and also those designated as Other Backwards Classes (OBCs). The reservation is undertaken to address the historic oppression, inequality and discrimination faced by these communities and to give these communities a place to join the main stream. It is intended to realize the promise of equality enshrined in the constitution.

The Constitution prohibits untouchability (Art 17) and obligates the state to make special provision for the betterment of the SCs and STs. Over the years, the categories for affirmative action, also known as positive discrimination, have been expanded beyond those to the OBCs.

Reservation is governed by the Constitution, statutory laws, and local rules and regulations. The SCs, STs and OBCs, and in some states Backward Classes among Muslims under a category called BC(M), are the primary beneficiaries of the reservation policies. There have been protests from groups outside the system who feel that it is inequitable.

Champakam Dorairajan Vs State of Madras AIR 1951 SC P.226- In 1950, the year in which the Constitution came into operation, one Champakam Dorairajan, a Brahmin candidate, filed a petition for issuance of a Writ of mandamus restraining the (then composite) state of Madras from enforcing a communal Government Order that provided for reservation in electoral constituencies. A full bench of the Madras High Court upheld the petitioner's plea. The state appealed in the Supreme Court. A seven-judge bench dismissed the appeal. It was this judgment that necessitated the Constitution First Amendment, which added Clause (4) to Article 15. (It was later found that the woman had filed the writ petition under a false affidavit. She was never contesting from the seat.) In this case, the  caste-based reservations were struck down by the court, as against Art 16(2) of the constitution. This case resulted in first amendment of the constitution of India.

 Judgment:

S. R. Das J - This judgment covers both case No. 270 of 1951 (State of Madras v. Srimathi Champakam Dorairajan) and case No. 271 of 1951 (State of Madras v. C. R. Srinivasan) which are appeals from the judgment passed by the H. C. of Judicature at Madras on 27-7-1950, on two separate apples. under Art. 226 of the Constitution complaining of breach of the petnrs.' fundamental right to get admission into educational institutions maintained by the State.

The State of Madras maintains four Medical Colleges and only 330 seats are available for students in those four Colleges. Out of these 330 seats, 17 seats are reserved for students coming from outside the State and 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between four distinct groups of districts in the State.

Likewise, the State of Madras maintains four Engineering Colleges and the total number of seats available for students in those Colleges are only 395. Out of these, 21 seats are reserved for students coming from outside the State, 12 seats are reserved for discretionary allotment by the State and the balance of the seats available are apportioned between the same four distinct groups of districts.

For many years before the commencement of the Constitution, the seats in both the Medical Colleges and the Engineering Colleges so apportioned between the four distinct groups of districts used to be filled up according to certain proportions set forth in what used to be called the Communal G. O. Thus, for every 14 seats to be filled by the selection committee, candidates used to be selected strictly on the following basis:

Non-Brahmins (Hindus) ... 6

Backward Hindus ... 2

Brahmins ... 2

Harrigan’s ... 2

Anglo-Indians and Indian Christians ... 1

Muslims ... 1

Subject to the aforesaid regional and what have been claimed to be protective provisions selection from among the applicants from a particular community from one of the groups of districts used to be made on certain principles based on academic qualifications and marks obtained by the candidates

In the case of the Medical Colleges, not less than 20 per cent. of the total number of seats available for students of the State were filled by women candidates separately for each region, it being open to the selection committee to admit a larger number of woman candidates in any region if qualified 0candidates were available in that region and if they were eligible for selection on merits vis-a-vis the men candidates in accordance with the general principles governing such admissions as laid down in those rules. It appears that the proportion fixed in the old Communal G. O. has been adhered to even after the commencement of the Constitution on 26-1-1950. Indeed, G. O. No. 2208, dated l6-6-1950, laying down rules for the selection of candidates for admission into the Medical Colleges substantially reproduces the communal proportion fixed in the old Communal G. O.

Sri Srinivasan who had actually applied for admission into the Govt. Engineering College at Guindy, filed a petitioner. praying for a writ of mandamus or any other writ restraining the State of Madras all officers thereof from enforcing, observing, maintaining or following the Communal G. O. in and by which admission into the Engineering College was sought to be regulated in such manner as to infringe and involve the violation of the fundamental right of the petitioner. under Art. 15 (1) and Art. 29 (2) of the Constitution, in the affidavit filed in support of his petitioner. the petitioner. has stated that he had passed the Intermediate Examination held in March 1950 in Group 1, passing the said examination in first class and obtaining marks set out in para. 1 of his affidavit.

It will appear that in the optional which are taken into consideration in determining the academic test for admission in the Engineering College the petitioner. Srinivasan secured 369 marks out of a maximum of 450 marks. The H. C. has by the same judgment allowed this appellant. also, and the State has filed an appeal which has been numbered 271 of 1951. The learned counsel appearing for the State of Madras conceded that these two applicants would have been admitted to the educational institutions they intended to join and they would not have been denied admission if selections had been made on merits alone.

Art.29 which occurs in part III of the Constitution under the head 'Cultural and Educational Rights' runs as follows:

"(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them."

It will be noticed that while Cl. (1) protects the language, script or culture of a section of the citizens, cl. (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in Cl. (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article. But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right.

The learned Advocate- General appearing for the State contends that the provisions of this Article have to be read along with other Articles in the Constitution. He urges that Art. 46 charges the State with promoting with special care the educational and economic interests of the weaken sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and with protecting them from social injustice and all forms of exploitation. It is pointed out that although this Article finds a place in Part IV of the Constitution which lays down certain directive principles of State policy and though the provisions contained in that Part are not enforceable by any Court. the principles therein laid down are nevertheless fundamental for the governance of the country and Art. 37 makes it obligatory on the part of the State to apply those principles in making laws.

The argument is that having regard to the provisions of Art. 46, the State is entitled to maintain the Communal G. O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights. Indeed, the learned Advocate-General of Madras even contends that the provisions of Art. 46 override the provisions of Art. 29 (2). We reject the above noted contentions completely. The directive principles of the State policy, which by Art. 37 are expressly made unenforceable by a Ct. cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Art. 32.

The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any Legislative or Executive act or order, except to the extent provided in the appropriate Art. in Part III. The directive principles of State policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights. In our opinion, that is the correct way in which the provisions found in Parts III and IV have to be understood. However, so long as there is no infringement of any Fundamental Right, to the extent conferred by the provisions in Part III, there can be no objection to the State acting in accordance with the directive principles set out in Part IV, but subject again to the Legislative and Executive powers and limitations conferred on the State under different provisions of the Constitution.

 In the next place it will be noticed that Art. 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that 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 also includes a specific clause in the following terms:

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments of 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."

If the argument founded on Art. 46 were sound,Clause(4) of Art. 16 would have been wholly unnecessary and redundant. Seeing, however, that cl. (4) was inserted in Art. 16, the omission of such an express provision from Art. 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 matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration, however, was not obviously considered necessary in the case of admission into an educational institution and that may well be the reason for the omission from Art. 29 of a clause similar to cl. (4) of Art, 16.

Take the case of the petitioner. Srinivasan. It is not disputed that he secured a much larger number of marks than the marks secured by many of the Non-Brahmin candidates and yet the Non. Brahmin candidates who secured less number of marks will be admitted into six out of every 14 seats but the petitioner. Srinivasan will not be admitted into any of them. What is the reason for this denial of admission except that he is a Brahmin and not a Non-Brahmin. He may have secured higher marks than the Anglo Indian and Indian Christians or Muslim candidates but, nevertheless, he cannot get any of the seats reserved for the last-mentioned communities for no fault of his except that he is a Brahmin and not a member of the aforesaid communities. Such denial of admission cannot but be regarded as made on ground only of his caste.

It is argued that the petnrs. are not denied admission only because they are Brahmins but for a variety of reasons, e. g. (a) they are Brahmins, (b) Brahmins have an allotment of only two seats out of 14 and (c) the two seats have already been filled up by more meritorious Brahmin candidates. This may be true so far as these two seats reserved for the Brahmins are concerned but this line of argument can have no force 0when we come to consider the seats reserved for candidates of other communities, for so far as those seats are concerned, the petnrs. are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made. The classification in the Communal G. O. proceeds on the basis of religion, race and caste. In our view, the classification made in the Communal G. O. is opposed to the Constitution and constitutes a clear violation of the fundamental rights guaranteed to the citizen under Art. 29 (2) In this view of the matter, we do not find it necessary to consider the effect of Art. 14 or 15 on the specific Articles discussed above.

For the reasons stated above, we are of opinion that the Communal G. O. being inconsistent with the provisions of Art. 29 (2) in Part III of the Constitution is void under Art 13. The result, therefore, is that these appeals stand dismissed with costs.

Champakam Dorairajan is a landmark decision of the Supreme Court of India. it was first major judgement regarding reservation in Republic of India. The first-ever amendment to the Constitution in 1951 was as a result of a Supreme Court judgment in the case of Champakam Dorairajan Vs State of Madras, which sets aside reservation of seats in educational institutions on the basis of caste and community. We had the insertion of Clause 4 to Article 15 moved by none other than Dr. B.R. Ambedkar himself. Probably this is the first move by the United Progressive Alliance (UPA) Government, which has the support of the Left from outside, to check the forces of privatization and globalization at least in the area of access to education. The influence of the booming market forces and crass commercialization of education has caused a great rift between the haves and have-nots with respect to quality education.

THE FIRST CONSTITUTIONAL AMENDMENT:

The Constitution (First Amendment) Act 1951 is related to matters dealt with in the Articles 15, 19 and 31. Of those matters, the issue of reservation required addition of clause (4) to Article 15. It reads thus.

 “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”.

Clause (1) of Article 15 says: “The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, and place of birth or any of them.”

Clause (2) of Article 29 prescribes: “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of the State funds on ground only of religion, race, caste, language or any of them.”

In the provisions 15(1) and 29(2), the addition of clause (4) to Article 15 is very significant and fundamental from the point of view of promotion of Social Justice.

  First, it safeguards the special measures taken to promote the advancement of weaker communities. It gives sanction to the law and orders already in existence like the G.O. of the Madras Presidency making reservation for the depressed and backward communities.

 Secondly, it encourages other States to take similar steps to meet the just demands of the Backward Classes.

Thirdly   it removes the legal hurdles, real or apparent, standing in the way of the Union Government discharging its constitutional obligation as indicated in articles 46 and 340. According to article 46, the state shall promote with special care the educational and economic interests of the weaker sections of the people, and the scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. The Articles 340 states that the President may by order appoint a commission to investigate the conditions of the socially and educationally backward classes and to make recommendations as to the steps that should be taken thereon to be laid before each house of Parliament.

 Fourth point is very important. Without reservation in educational institutions as guaranteed by the constitution first amendment, the reservation of appointments provided under Articles 16(4) and Article  335 will not benefit the socially weaker communities. Without getting the opportunity to educate, how could they hope to get jobs?  Only when we consider these basic benefits obtained through the addition of clause (4) to Article 15, we can realize Pereyra’s service to promote social Justice at a crucial period, viz., soon after the Constitution of India came into force in 1950.

 When the 1951 amendment introducing clause 4 to Article 15 of the Constitution was passed in Parliament, the question of identifying the socially and educationally backward classes for the purpose of Articles 15(4) and 16(4) was specifically examined by the Government. As the list of the backward classes had been already prepared after investigating the claims from time to time, it was decided that the list should be taken as the proper one for the purpose of Articles 15(4) and 16(4).

 The government of Madras in its Fort. St. George Gazette dated 24.4.1951 issued a list of the ‘Socially and educationally Backward Classes’ within the meaning of and for the purpose of Articles 15(4) and 16(4) of the constitution.

 This marked the turning point of a bright future for the socially weak and educationally backward classes. The present list of the Most Backward Classes owes its origin to the genuine efforts of Mr. Kamaraj and Periyar E.V. Ramaswami. The list was finalized and given statutory recognition in 1954.  The first amendment to the Constitution, 15 (4), has been made to fulfil the noble cause of promoting equality amongst all sections of the society.

ART 16 (2) -

16 (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.

Article 15(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 an educationally backward classes of citizen or for the schedule caste and the Scheduled Tribes.

Conclusion –Parliament will have the last word on one more occasion. This time on a matter that will affect millions of poor and socially oppressed people. The ushering in of yet another Constitution amendment, necessitated by a judicial pronouncement, shows the alertness of the polity in protecting the rights of the under-privileged. The amendment to Article 15 of the Constitution, by insertion of clause (4) to ensure admission to Scheduled Castes, Scheduled Tribes, and educationally and socially backward classes in all educational institutions, both private and public (except minority run-institutions), is a revolutionary step more than five decades after we adopted the Constitution.

 Legislation enacted to enforce the provisions in the amendment should ensure that access to education in all institutions (aided and unaided), should be complete. The Delhi Government had a bad experience when it tried to implement the directions of the Delhi High Court order in January 2004, which ruled that 25 per cent of seats in all educational institutions should be provided to under-privileged children. The brazen violation and failure to implement the mandatory clause for providing 25 per cent seats to the poor by private schools, who were allotted land at concessional rates by the Delhi Development Authority, is another issue. Some schools hold separate classes after school hours for poor children to fulfil the norm and refuse to admit them along with regular students. In 1944, Dr. B.R. Ambedkar, who benefited by scholarships for his education, created a scheme called `Post Matric- Scholarship.' Based on this model, several variant schemes were evolved. But these scholarships are inadequate to take care of a child's education in government-run schools and lack adequate funding. Successive governments failed to match the scholarship with the rising consumer price index. A landless laborer or an urban laborer should be compensated for the loss of income where all the family members work during agricultural season or construction activities in cities. This would be the appropriate time to reassess the scholarship needs of the poor and socially oppressed. A massively-funded programmed would be needed for the under-privileged in both government and private schools to continue. Bureaucratic exercises of revamping such schemes have severe limitations of vision and are often the reason for the failure of schemes and pilferage of funds.

While making suggestions, it is required that the implementation of reservation must be in right spirit I.e., it must be on equitable number means, all down trodden sections should be provided reservation in education at all levels and financial support to students from down trodden must be enough.

To see India a prosperous and welfare state it is required that the participation of all down trodden sections to be in proportion to their population on the concept of responsibility and accountability for all those who are operating the system in this regard.

Reservation for SCs and STs is linked with untouchability. Therefore, we all are required to accept the reality that untouchability is existing and its end is a requirement enabling all to become participants in framing of policies. Thus it  should not be far off when the reservation will end and all will enjoy EQUALITY, LIBERTY AND FRATERNITY WITH SOICIAL JUSTICE TO ALL.

Reference –

·         K. Veeraswami “The history of the struggle for social justice in Tamilnadu”, Dravinder kalaga sssssveliyeedu, madras 1991 p-44-46

·         The Hindu articles

·         Wikipedia

·         V.N Shukla’s CONSTITUTION OF INDIA by Mahindra P. Singh 11^th edition.

·         Wikipedia

·         LSI

By Miss Sonam Bishnoi,

Asstt Professor,

GLOBAL COLLEGE OF LAW 

At "Naaglok"Kushaliya, PO:Hindan Nagar Dasna Distt Ghaziabad NCR