India: Casteism Much? – An Analysis Of Indra Sawhney: Part II

Last Updated: 30 November 2017
Article by Aditya Mehta and Percival Billimoria

Published here is Part II of the blog piece on the Indra Sawhney Case, which examines in-depth, the case of Indra Sawhney, the use of 'caste' as a factor in determining backwardness for the purpose of reservation, and the delicate balance between the needs of the society and the constitutional vision.

We hope you enjoy reading this as much as we have enjoyed putting this together.

II. The Mandal Commission and the case of Indra Sawhney

A. The Mandal Commission and its Recommendations

In the year 1979, the Second Backward Classes Commission (Mandal Commission) was set up which was tasked with, inter alia, determining the criteria for defining the socially and educationally backward classes. After an exhaustive survey, the Mandal Commission identified 52% of the Indian population as "Socially and Economically Backward Classes" (SEBCs). Subsequently, it recommended a 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.

In the year 1990, Prime Minister V.P. Singh announced that his government would implement reservations on the basis of the recommendations of the Mandal Commission.1 Two office memoranda, O.M. No. 36012/13/90-Estt (SCT) dated August 13, 1990 as amended by O.M. No. 36012/13/90-Estt(SCT) dated September 25, 1990 sought to enforce these recommendations. The decision sparked widespread controversy and led to thousands of students coming out onto the streets to protest against the decision. There was a complete breakdown of law and order and some students even immolated themselves.2

These two office memoranda came under challenge before a nine-judge bench of the Supreme Court. The Supreme Court was to decide whether the recommendations given by the Mandal Commission could be accepted as correct and constitutionally valid. The matter was heard by the nine-judge bench and by a 6:3 decision, the constitutionality and enforceability of the impugned office memoranda was upheld subject to certain conditions. The leading judgment is by BP Jeevan Reddy, J. (for M.H. Kania, C.J., M.N. Vekatachaliah, A.M. Ahmadi and himself) along with concurring opinions by S. Ratnavel Pandian and P.B. Sawant, JJ. Separate dissenting opinions were given by Dr. T.K. Thommem, Kuldip Singh and R.M. Sahai, JJ.

While the judgment itself dealt with several issues, the discussion herein are limited to the meaning of the expression "backward class of citizens" and the criteria to identify them.

The majority opinion analysed the uses of the terms "caste" and "class" by conducting a detailed analysis of precedent, the Constituent Assembly Debates and pre-independence history. It further referred to the speech of Dr. Ambedkar in the Parliament at the time of the First Amendment where he said that backward classes "are nothing else but a collection of certain castes."3 Adopting the same rationale, the majority opinion held that a classification based on caste was constitutionally permissible since "A caste is nothing but a social class – a socially homogeneous class"4 and that merely because the word "class" is used in Article 16(4), it cannot be concluded that it is antithetical to "caste".5 Further, given that caste, occupation, poverty and social backwardness are closely intertwined in our society, the entire caste in many cases, inevitably becomes a socially and economically backward class.

The concurring opinion of Sawant J., also proceeded on a similar rationale. He too alluded to the caste-occupation nexus.6 He reasoned that if a social group had hitherto been denied opportunity on the basis of caste, the basis of remedial measures must also be on the basis of caste.7 Even though reservation is based on "caste", it is not in reality in favour of the caste, but actually in favour of a class or social group which has been discriminated against.8 Similarly, the concurring opinion of S. Ratnavel Pandian, J. held that a determination of "socially and educationally backward class" beyond the caste label would amount to turning a blind eye to the existing stark reality in Hindu society.9

Thus, with the above opinions, six out of nine judges lent their express approval to the use of caste as a means for identifying "backward classes".

B. The Dissenting Opinions in Indra Sawhney

Of the three dissenting opinions, the opinion by R.M. Sahai, J is perhaps the most extensively reasoned. R.M. Sahai, J inter alia opined: First, since the Constitution uses a wider word of "class" and not "caste", elementary principles of construction dictate that an interpretation leading to identification of backwardness on the basis of caste ought to be rejected.10 Second, empowering the state to make reservation under Article 16(4) on race, religion or caste would amount to destroying the purpose and object of Article 16(2) and would fall foul of the rule of anti-discrimination on the basis of caste.11 Third, identification based on caste would preclude socially, educationally and economically backward members of other communities (such as Bhisties among Muslims) from being regarded as backward classes. 12

On this basis, R.M. Sahai J. opined that utilization of caste as the basis for determination of backwardness is constitutionally invalid and even ethically and morally impermissible. He advocated for a system of identification of backward classes that is based on three criteria – occupation (immaterial of whether it is related to caste), social acceptability and economic criteria.13 Kuldip Singh, J. agreed with R.M. Sahal J. and advocated for identification on the basis of secular collectivity (such as occupation plus income) as opposed to caste collectivity.14

Another dissenter, Thommem, J., held that the Constitution is neither caste-blind nor caste-prejudiced, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens.15 However, he reasoned that any reservation solely with reference to caste will fall foul of the rule of anti-discrimination and may result in invidious reverse discrimination.

III. Critique of Using 'Caste' as a Determinative Factor

This constitutional bar against classification on the basis of castes is evident in the vision of the framers of the Constitution. They were intent on achieving a caste-less society as seen in the Constituent Assembly Debates and early Lok Sabha Debates. Entrenching the word "caste" in the Constitution would have been fatal to this idea of a casteless society and instead cause its incessant perpetuation. Indeed, there was no mention of the word "caste" in Articles 15 or 16 of the Constitution (as it was originally adopted), except in the context of explicitly barring discrimination.

Our current policy stands in stark contrast to the constitutional vision outlined above, as it permits identification of backward castes as the beneficiaries of affirmative action policies. Such a drastic departure from the original constitutional vision may be attributable to the blessing of the Supreme Court in Indra Sawhney. Indra Sawhney´s equation of caste with class as under Article 16(4) and permitting delineation on the basis of caste may be problematic for several reasons.

Article 16(4) has to necessarily be read in a manner that is consistent with the rest of the Constitution, including Article 15(1) that prohibits the state from discriminating against any citizen on, inter alia, grounds only of caste. Therefore, the interpretation of Article 16(4) must necessarily yield to the broad rule of anti-discrimination under Article 15. In our opinion, the broad rule essentially makes certain considerations, like caste, inapplicable in law. Caste considerations remain a closed path even if the ultimate goal is that of equality.

Considering the above, we think employing caste as a sole or even as a determinative factor to ascertain backwardness falls foul of this broad rule of anti-discrimination and is inherently contradictory to the constitutional vision of a caste-less society. This rationale has been endorsed by the minority in Indra Sawhney, specifically, Kuldip Singh, J. and R.M. Sahai, J.

The majority cites a caste-occupation-poverty nexus to justify caste-based identifiers of backwardness. Undoubtedly, even today there is vicious cycle wherein historically oppressed caste groups are educationally backward and, consequently, remain socially and economically backward. However, if the caste-occupation-poverty nexus is indeed true (and there is little reason to suppose it is not), then the majority does not reason why secular identifiers such as occupation-cum-means tests (disregarding caste, as suggested by R.M. Sahai, J. in his dissent) cannot form a viable alternative. Anyone advocating the use of caste as a delineating factor when the Constitution explicitly bars discrimination on the basis of caste has a high burden to establish that other secular factors may not be appropriate or adequate. The majority fails to deal with this aspect altogether and does not engage with alternative markers of backwardness sufficiently. By not doing so, the majority has departed from a caste-blind constitutional vision and firmly entrenched caste-consciousness in the formulation of policy.

The issue is not merely an academic quibble such as divergence from the constitutional vision. Indra Sawhney's approval of caste-based reservations has engendered several dangerous practical problems in society. Briefly, these include:

  • Equating 'caste' with 'class' runs the imminent risk of entrenching atavistic caste identities firmly within society. Individuals continue to be acutely aware of their caste and those around them since they are determinative in school and college admissions and public employment.
  • A system of reservations based on caste, incentivises even non-backward individuals belonging to "backward" castes (creamy layer) to exploit their caste to benefit from affirmative action.
  • Permitting the use of a determining factor that is predominantly associated with only one community is contrary to the basic feature of secularism and operates to the exclusion of religions and communities that do not recognise caste.
  • Caste-based reservation has resulted, or at least continued to ensure, that caste identity remains a dominant organising force in Indian society – while caste may have lost on the ritual front, it has gained on the political front.
  • Hinging "backwardness" on caste risks creating backward classes within backward classes, as a particular group of people who benefit from special provisions will perennially use its crutches to the exclusion of others within the same caste.

IV. Concluding Remarks

There is no doubt that the constitutional guarantee of equality of opportunity can be achieved inter alia by discrimination with reason. However, like any other classification, any differential treatment must necessarily connect to the constitutionally permissible object. Essentially, the issue before the Indra Sawhney court was (i) whether the classification on the basis of caste is permissible, and (ii) whether there is a rational nexus to such caste-based classification for the advancement of backward classes of citizens.

The authors answer both the above questions in the negative. A classification on the basis of caste is impermissible in light of the constitutional bar against discrimination on the basis of caste. This cannot be circumvented by stating that the classification is not on the basis of caste in itself, but only using caste as a marker for identification of backward class, since it would still amount to recognition of a caste-collective, that is impermissible under the Constitution. Further, there is no rational nexus between classification on the basis of castes and advancement of backward classes as 'castes' and 'classes' are conceptually different, even though there may be a high degree of empirical overlap.

In Indra Sawhney, the Supreme Court was tasked with resolving "complex problems of Indian Society, wrapped and presented ... as constitutional and legal questions".16 Unfortunately, it seems like the Court has not been successful in either – while attempting to resolve societal problems, the Supreme Court has not only lost sight of core constitutional principles, but also exacerbated the societal problem of casteism, for reasons outlined earlier. It has whittled away the deliberate distinction between "caste" and "class" that the framers struggled for and thus, the case stands on constitutionally shaky grounds. In trying to settle a constitutional question, the Supreme Court unwittingly opened up a political can of worms.

* The author was assisted by Manasa Sundarraman, Associate

Footnotes

[1] Smita Narula, Broken People: Caste Violence Against India's "untouchables", 38.

[2] David Keane, Caste-based Discrimination in International Human Rights Law, 148.

[3] ¶¶775-776, Indra Sawhney.

[4] ¶779, Indra Sawhney.

[5] ¶778, Indra Sawhney.

[6] ¶474, Indra Sawhney.

[7] ¶418, Indra Sawhney.

[8] ¶418, Indra Sawhney.

[9] ¶101, Indra Sawhney.

[10] ¶574, Indra Sawhney.

[11] ¶589, Indra Sawhney.

[12] ¶¶572-280, Indra Sawhney.

[13] ¶593, Indra Sawhney.

[14] ¶351, Indra Sawhney.

[15] ¶279, Indra Sawhney.

[16] ¶683, Indra Sawhney.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions