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INTRODUCTION
India is most often labeled as the worlds largest democracy; with a
controlling, protective and progressive constitution; a legal system designed to
tackle, punish and control the discriminatory acts on the basis of caste; programs
based on affirmative action that include mandate for reservations an
overabundance of caste conscious measures designed to ensure upliftment of the
backwards; and a campaign to fuel Indias economic growth through the means
of aggressive economic liberalization. Class is prevalent in every society but the
caste system found in India is unique.
Socially, politically as well as academically, caste is as much significant in
India as race is in the United States, class is in Britain and faction is in Italy. It is
the paramount fact of life in the Indian sub-continent, as well as the very core or
essence of south Asian civilization.
The founding fathers of the Constitution of India were very much
concerned for the secularism. No single religion has been declared as a national
faith constitutionally, as they were not willing to let India go on the path of
Ireland and Pakistan in the matter of religion.
The constitution of India has no reference to sacred scripture, Brahmans,
shudras, gods, or concepts of purity. Yet ironically, the Constitution provides
such provisions regarding the advancements of tribals, SCs and backward classes,
so as to make the state agencies to recognize the existence of caste. Historically,
there has been some castes and classes in the Indian society which were really
deprived of equal opportunities for education and social development, just on
fake concept of Varna system prevalent in the ancient times. So in order to bring
equality of status and opportunity in the society, it was required to provide some
privileges to the backwards.
This apparently or prima-facie foolproof master plan could not achieve any
substantial progress in the matter of attaining equality and to eradicate
oppression and exclusion faced by over 167 million Dalits in India.1
DEFINITION OF CASTE:
The word caste originated from the Spanish word casta meaning race or
a group having hereditary quality. The term was applied to people of India by
the Portuguese to denote Jati. Mostly the word caste used to denote both Varna
and Jati. There are four Varnas (Brahmin, Kshatriya, Vaishya, Shudra) and
about 4000 Jati.The researcher has used the term caste here to denote Jati.
Caste can be defined as hereditary endogamous group, having a common
name common traditional occupation, common culture, relatively rigid in
matters of mobility, distinctiveness of status and forming a single homogenous
community. A caste is a horizontal segmental division of society spread over a
district or region or the whole State and also sometimes outside it.2
But it is not appropriate to term caste as purely a horizontal segmental
division society in the context of India, because various caste found in India are
equal. There is an element of inequality prevalent in caste system in India. And it
would be apt to say that caste system originated particularly on the basis of
inequality concept of Varna system. Thats why it would be apt to term caste
system in India as vertical segmental division of the society.
2 I.P. Desai, Should caste be the Basis for Recognising Backwardness (1985); D.A. Desai adopts this definition in K.C.
Vasanth Kumar v. State of Karnataka, 1985 Supp (1) SCC 714; According to E.S. Venkataramiah, J., A caste is an association of
families which practices the custom of endogamy i.e. which permits marriages amongst the members belonging to such families
only. A caste is based on various factors, sometimes it may be a class, a race or racial unit at p.786, para 110 Vasanth Kumar case.
S. JAPHET CHANDAN GOWDA, Caste Census Towards an Inclusive India(1st Edn. 2010), at p. 75
Syed Ali, Collective and Elective Ethnicity: Caste Among Urban Muslims in India, Sociological Forum, Vol. 17, No. 4,
December 2002.
9
10
11
Romila Thapar, History of India, Vol.1 (Penguin Books, New Delhi 1966, 1981) at pp.37-41
Chaturvarnyam maya srishtam guna karma vibhagashah The four orders of castes were created by Me classifying
them according to their qualities and actions andapportioning corresponding duties to them. Bhagvadgita, 4th -13.
12 B Kuppuswamy, Social Change in India (5th Edn., S. Chand, New Delhi 1970) at p. 160.
13
14
V.D. Mahajan, Ancient India (5th Edn., S. Chand, New Delhi 1970) at p. 160.
15
16
Ibid, at p.311.
17
MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984)
(analyzing treatment of Dalits under Indian Constitution).
19 SUSAN BAYLY, Caste, society and politics in India (1st Edn. 1999 Cambridge University Press) at p. 270
20
PRATAP KUMAR GHOSH, The Constitution Of India: How It Has Been Framed 70 (1966).
21
mix recruits of different caste within the individual companies that comprise a
battalion. 22 What remains of the prerogative previously enjoyed by the caste
groups? The caste retains the right to manage and own property and to sue in
courts. Section 9 of the Civil Procedure Code with its bar on judicial cognizance
of the caste questions are still in force. And the courts still refuse to entertain the
cases involving the caste questions and the caste retains the disciplinary powers
over their members. The caste retains its power of excommunication. 23.
To the extent that its religious distinctiveness can be construed as giving it
a distinct culture of its own the caste group may merit the protection afforded by
Article 29(1) which provides that any section of the citizens having a distinct
language , script or culture of its own shall have the right to maintain the same.
And Article 29 is mentioned by the courts in its assertions of the rights under
Article 30(1). Apparently every religious denomination or section thereof may
qualify as a cultural group. The right to conserve their culture clearly included
the right to transmit their culture. The court in the case of Rev Sidhrajbhai
Shabbji Vs State of Gujarat24 invalidated a government order withdrawing the
aid and recognition from a teacher training institution which refused to reserve
80 percent of its places for the government appointees. The governmental
regulation of the minority institution should not only be reasonable, but
conducive to the minority community. Presumable then, any group which can
characterize itself as either a minority based upon religion or a section of the
citizens with a distinct culture may qualify for wide range of protection.
Article 17 of the Constitution abolishes Untouchability and forbids its
practice in any form. The Untouchability (Offences) Act was passed in 1955. Its
scope was enlarged and its penal provisions were made more stringent by
amending it in 1976. It was renamed as Protection of Civil Right Act. In 1989,
another Act called Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) was passed. While Article 17 of Fundamental Rights abolishes
Untouchability, Articles 14, 15 and 16 establish principles of equality and social
justice. Article 14 proclaims equality before law and equal protection of law for
all. Article 15(1) prohibits discrimination on grounds of race, caste, sex, religion
or place of birth. Article 16(1) further provides equality of opportunity to all.
These two articles apart from proclaiming every one equal also provides that that
the State can make special provisions for SCs and STs. Articles 38 and 46
specifically aim at securing social justice to the deprived sections of the
population.
22
23
24
PROTECTIVE DISCRIMINATION:
The word protective discrimination may sound paradoxical, but in our
society where inequality abounds, equality of all cannot be a reality without
discrimination to level up inequality. For the purpose of securing equality, the
government is empowered to make certain special provisions so as to favor the
untouchables, the tribal and the backward classes. After the enactment of the first
constitutional amendment in 1951, Balaji 25 was the first case which came up
before the Supreme Court in which it struck down a scheme of reservation in
college for the backward classes on the ground that they were selected solely on
the ground of caste. It seems, by the decision of this case, that the highest
judiciary of the country was not really willing to provide any special treatment to
the uplifment of backwards on the basis of caste. The main reason for rejected the
Mysore order was that it was based solely on caste. After Balaji, an order in
which a family with income less than Rs.1,200 per year, and which practiced
such occupations as crafts, agriculture, petty business, inferior services etc. were
declared to be treated as backward by the State Government, was held to be
valid in Chitralekha Vs State of Mysore 26. Here two factors-economic condition and
profession-were taken into account to define backwardness, but caste was
ignored for the purpose. This clearly confirms the Balaji view that caste caste
cannot be considered as a basis of backwardness.
In course of time, the judicial view has undergone some change in this
respect and caste as a factor to assess backwardness has been given somewhat
more importance. The Supreme court has noted the fact that there are numerous
castes in the country which are backward socially and educationally and the state
has to protect their interests. A caste is also a class of citizens and, therefore, if
an entire caste is found to be socially and educationally backward, as a fact, on
the basis of relevant data and material, then inclusion of the caste as such would
not violate Article 15(1). When backwardness is defined with reference to castes,
the Court wants to be satisfied that not caste alone, but other factors have also
been considered for the purpose.27
25
26
27
10
MAHENDRA P. SINGH, V.N. Shuklas Constitution of India, (11th Edn. 2008), at p.88.
M.R. BALAJI V. STATE OF MYSORE, AIR 1963 SC 649
11
meaning. Art. 15(4) being a special provision cannot denude Art. 15(1) of all its
significance. The special provision contemplated must be within reasonable
limits. In an attempt of promoting and preserving the interests of the people who
belong to the weaker sections of the society, the interest of the society as a whole
cannot be ignored; and the interests of the weaker section of society have to be
adjusted with the interests of the whole community. The national interest and the
interest of the society as a whole shall be kept into considerations while
providing for reasonable and special provisions for the weaker sections of the
society under Art. 15(4). The supreme court condemned the excessive reservation,
for it may affect efficiency by eliminating general competition. The general
principal laid down by the court is that the maximum limit of reservation should
not be more than 50%.
In the State of Kerela Vs N.M.Thomas30 , the Supreme Court held that it
was permissible to give preferential treatment to the SCs and STs under Article
16(4). The majority held that Article 16(4) is not in the nature of exception but it is
a facet of Article 16(1), which fosters and furthers the idea of equality of
opportunity, with special reference to an under privileged and deprived classes
of citizens. The majority thus ruled that Article 16(1) itself permits reasonable
classification for attaining equality of opportunity assured by it. Thomas case
thus marks a beginning of a new judicial thinking on article 16 and leads greater
concession to the SCs, STs and the OBCs.
After these judgments, a lot of incidents happened where a wholesale
reservation were announced by the respective States. A very confusing and
anarchic situation was prevalent in the country. The Second Backward Classes
Commission was appointed in 1978 under the Chairmanship of B.P. Mandal and
this was known as Mandal Commission. In the Commissions opinion
backwardness was related to Caste. Accordingly, it identified 3,743 castes as
backward on the basis of above mentioned indicators. Since then these castes
have come to be known as Other Backward Castes (OBCs) meaning thereby
backward castes other than Scheduled Castes. In August 1990, Government of
India announced the acceptance of Mandal Commissions recommendations.
This was the time when decision of Supreme court came in Mandal Commission
Case.31 REDDY, J. in his elaborate judgment answered the several questions that
emerged in the instant case.
1. Backward class of citizens in Article 16(4) can be identified on the basis of
caste and not only on economic basis. The majority held that caste can be a
criteria for ascertaining the backward classes in India; because caste is
30
31
2.
3.
4.
5.
6.
7.
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itself a social class in India and if the caste is socially backward then it can
be considered a backward class for the purpose of Article 16(4).
Article 16(4) is not an exception to Article 16(1); it is an instance of
classification and reservation can be made under Article 16(1).
The backward classes in Article 16(4) are not similar to as socially and
educationally backward in Article 15(4).
Creamy Layer must be excluded from the Backward Classes.
Article 16(4) permits classification of the backward classes into backward
and more backward classes.
Economic condition of a person cannot be the only criteria to identify the
backwardness.
Reservation shall not exceed 50% and can be made by an executive order.
However there can be no reservation in promotion.
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http://indiacode.nic.in
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There have been a lot of plans made for the empowerment and
development of the Scheduled Castes and the Scheduled Castes till now, but still
a lot of hard work has to be done in order to imagine for the equality on the
ground. Still the people are not getting proper education, employment, health,
sanitation facilities. Actually the problem is not that the development plans are
lacking, but they are not properly implemented.
It can be seen from the various provisions of the constitution and
subsequent constitutional amendments and legislations that the government is
trying to use reservation as a tool for the upliftment of backwards. Now the
question comes as to how far this tool of reservation has been successful in its
aim. It may be admitted that reservations are an attempt, however imperfect, to
equalize opportunity in the face of a social structure that is antithetical to
equality of opportunity. But reservations alone constitute insufficient remedy to
the problem of caste discrimination in India- as the reservations have in itself
been subject to criticisms by various masses of people.
Reservations are an attempt, however imperfect, to provide an equalize
opportunity in the face of a social structure that is antithetical to equality of
opportunity. Reservations create the possibility of a meritocracy in a system that
is functionally anti-merit. Yet conversations about affirmative action stagnate
around the question of whose disadvantage deserves protection and for how
long, and fail to ask who stands to benefit from systematic social exclusion.
Reservations alone constitute an insufficient remedy to the problem of caste
discrimination in India. Controversy over the reservations scheme has also
allowed the debate to predictably stagnate around the distribution of privilege,
taking the focus away from violations of basic rights.
CRITICISMS
AGAINST
BACKWARDNESS:
CASTE-BASED
IDENTIFICATION
15
OF
It is ironical to say that instead of enforcing the rules of law, rules of the
caste system are being enforced by Indias law enforcement machinery. Critics
say that the strategy of caste based reservations for purposes of social uplift
rests on the concepts of collective deprivation which are crude and ahistorical,
and that it promotes a view of Muslims and other non-Hindus as being in some
way unworthy of the states protection. The system has been challenged too on
the grounds that the caste-name lists and other data used in these exercises
repeat many of the errors and contradictions of the old colonial ethnographic
inventories. A particular complaint is that the caste designations appearing on
the Scheduled Tribe and Caste lists include many which refer to broadest and
most generalized regional status groupings, and certainly not to homogenous
communities with an inheritance of uniform disability. Furthermore, the
much-debated theory of the creamy layer holds that these quota schemes do not
direct aid to those who are truly needy. The debates on this topic have been all
the more vehement because both before and after Independence, some
campaigners have linked these apparently sound and rational ant-reservations
arguments to assertions that the depressed are poor and backward by divine
mandate or personal deficiency, and therefore have no claim on the states
limited resources. The thought that government action might in some way give
credence to these views has been particularly alarming to defenders of the
Nehruvian secular tradition.
Firstly, since caste is a constitutionally prohibited ground of discrimination
and has linkage with religion, use of it for ameliorative purpose is not
appropriate especially when alternative and secular criteria can be used for
identification of backward classes.
Secondly, caste in the present day world is not reflecting attributes of
superiority or subordination with privileges and disabilities because of the social
dynamics of urbanization and education.
Thirdly, determination of status of caste on the basis of caste-wise statistics
of 1931 census, as is presently done by various Commissions is unscientific.
Fourthly, in order to get the benefits, devious methods are adopted by false
attribution of some characteristics or even by false certificates. The means test
that is used to keep away Creamy layer is not foolproof in practice in checking
undeserved claims.In earlier times, it may be stated that slavery was in one way
institutionalized by the caste system in India. Or, the caste system is itself an
institutionalized slavery.
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CONCLUSION
Preamble of the constitution of India commits itself to secure to all the
citizen Justice, Social, Economic and Political, equality of status and opportunity.
But merely declaring that all citizens are free and equal was not sufficient and
there was need to create a mechanism of law for achieving social change.
It is really a paradoxical situation that while on one hand, constitution is
having a foundation of social transformation; but on the other hand India is
hiding the real segregation, exploitation and other forms of abuse by not
allowing further studies into the condition of backwards. Despite a large body of
legislations, the laws have benefited few and still there are a large number of
people who suffers from discrimination, social exclusion and oppression; the
people are still besieged with the mind sets of superiority and inferiority of caste.
Growing agitations by backwards and dalits for their rights are increasingly
met with large-scale violence and attempt to further remove dalits from
economic self-sufficiency.
From the above study, it can be inferred that while at the social level harsh
practices of caste prejudices and untouchability caused social degradation, the
intellectuals, rational thinkers and reformists supplied motivating force for
eradication of the evils experienced of caste system. It is significant that the
innate voice of reform coming from within the society repeatedly at various
stages of historical development kept alive the aspiration for justice.
It is paradoxical situation in India that it has made tremendous progress in
nearly every field, but the condition of its dalits and backward communities is
still unchanged. It is doubtful to say that the road on which India is running will
eventually take it to a destination where ones status or his claims over resources
or his very human personality will not be determined by his race and caste.
17
SUGGESTIONS
1. NEED OF AFFIRMATIVE ACTION POLICIES AND DEBATES:
Various mechanisms of law in the form of protective legislations and constitutional
amendments and provisions were used to create a real social transformation in India. But
they could not actually penetrate the ceiling of caste, and eradicate the caste based
inequality and exploitation. Now it is required that that some affirmative action policies
and debates are taken to further examine the conditions of the backwards.
2. TESTING OF MECHANISMS OF LAW:
Now the time has come that the formal mechanisms of law meant for bringing
social change in the society should be properly scrutinized so as to ensure they are able to
effectively redress entrenched discrimination against backwards and ensure their
substantive equality. This is the first step to test actual impact of these mechanisms.
3. TO KNOW WHO IS BEING BENEFITTED IN REALITY:
It is now real concern to know that whether the backward people for whom the
privileges are being made, are actually being benefitted, or the persons who are already in
a better position are making use of them. For this, a proper survey should be carried to
know the creamy layer people in backward classes, so that the creamy layer can be fully
implemented and needy could be benefitted.
4. RESERVATIONS SHOULD NOT BE GIVEN IN PROMOTIONS:
It is submitted that the reservations should not be given in promotions of services.
The aim of providing reservation to a backward person is to let him have an opportunity
to rise in his social and economic status. It is assumed that a person when gets a job on
the basis of reservation already comes up in his status, he can no more be deemed as
backward; so what is the requirement of giving him further reservations in promotion.
This is required so that the reservation facility can be availed only by the person who is in
real need of it.
5. HUMAN RIGHTS STRATEGIES MUST BE REFORMED:
Two goals must be set in the human rights strategies so as to first, remedying the
effects of discrimination and second, dismantling the discriminatory mindset. Without the
dismantling of discriminatory mindset, the aim of equality will by definition remain
incomplete.
6. NEED TO LOOK BEYOND THE MERE EXISTENCE OF POLICIES:
The need is to look beyond the mere existence of affirmative action policies and
protective legislation and to scrutinize the implementation of these laws.
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ANNOTATED BIBLIOGRAPHY
1. Bhagvadgita 4th Edition
2. Bayly Susan, Caste, Society and Politics in India (1st Edn. 1999), Cambridge
University Press.
3. Department of Social Welfare 1969, Report of the Committee on
Untouchability.
4. Ghosh Pratap Kumar, The Constitution of India: How It Has Been Framed 70
(1966).
5. Gowda S. Japhet Chandan, Caste Census Towards and Inclusive India, (1st
Edn. 2010), NLSIU publication, Bangalore.
6. http://www.jstor.org/stable/3023430
7. http://www.censusindia.gov.in
8. http://indiacode.nic.in
9. Jain M.P., Indian constitutional Law, (5th Edn. 2003), Lexis Nexis
Butterworths Wadhwa, Nagpur.
10. Kuppuswamy B., Social Changes in India, (5th Edn.), S. Chand.
11. Marc Galanter, Competing Equalities: Law and the Backward Classes in India
(1984) (analyzing treatment of Dalits under Indian Constitution).
12. Singh P. Mahendra, V.N. Shuklas Constitution of India, (11th Edn. 2008).
Eastern Book Company, Lucknow.
13. Thapar Romila, History of India Vol.1; Penguin Books.
14. V.D. Mahajan, Ancient India (5th Edn., 1970), S. Chand, New Delhi.