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THE CONSTITUTION OF INDIA– SOCIAL AND

ECONOMIC JUSTICE:

PROLOGUE:

It is very thoughtful of the Karnataka Law University to

have chosen the topic “The Constitution of India – Social

and Economic Justice” as the subject for the First Havanur

Endowment Lecture. The choice of the subject is very

appropriate; late Shri Havanur was a great champion of

social justice who fought for social equality and economic

justice for the disadvantaged and marginalized sections of

the society. The relevance of the topic assumes greater

significance because of the presence of Hon’ble

Dr.Veerappa Moily, Union Minister for Corporate Affairs, as

the President of today’s function, himself a great champion

of social justice. The subject also compels introspective

searchings.

It is interesting to notice how the concept of social justice had

evolved. The ultimate function of law is the realization of justice.

The term justice defies clear cut definition: in different countries

in different ages depending upon the existing social

environment the content and scope of justice varied. In the

distant past, slave trade, freedom of contract on most

exploitative terms and sanctity of private property found

justification in the name of law and justice. The noted jurist

C.K.Allen describes the situation:

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“Abominable injustices have been done in the name of justice

even as terrible oppressions have been done in the name of

liberty, because when men sink to the lowest they clutch for

excuse at the highest1.

In the Nineteenth century the concept of justice had

taken a new meaning: individual rights, freedom of contract,

unlimited right to private profit making were all approved in the

name of justice. In the twentieth century the emphasis was

shifted from individualism to communitarianism.

In the twentieth century the term justice is

understood as connoting distributive idea and the legal system

is intended to realize that objective. From a narrow point of view

legal justice deals with rights of the state to define crimes and

prescribe punishments besides regulating the civil rights and

obligations of individuals and the procedure for enforcing the

same. On the other hand social justice concerns with the

distribution of benefits and burdens throughout the society

entitling every member of the society to enjoy the same level of

well being as every other2.

The well known concept of equality of opportunity

received a wider meaning viewed in the background of social

justice thus implying equal opportunities for all without

discrimination, obstacles or disabilities of any kind. Unequal

capacities which are the consequences of social and economic

inequalities should not impede or prevent people from availing

of opportunities for their well being.

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Exclusion of formal equality and introduction of factual

inequality is what social justice mandates. Realization of social

justice compels alteration of the basic structure of the society

by ushering in a new legal order to harmonize the conflicting

interests of different sections. Differential treatment accorded

by law to further social justice cannot be termed discriminatory

since the welfare of the society as a whole is the basis for the

differential measures. Welfare of the whole ensures the welfare

of the parts.

Social justice thus broadly incorporates economic justice

also. In the Indian context social justice assumes new

significance. It bears no analogy to the meaning ascribed to it in

the western societies. The stratification of the Hindu society

based upon institutionalized hierarchical social inequalities

makes the upward movement of the lower castes impossible.

The division of society into Brahmanas, Kshatriyas, Vaishyas

and Sudras has divided the society vertically. The rigidity of the

caste system had sealed the mobility of people from one caste

to another. Below the fourfold division of the Hindu society

there is a large class of people known as Panchamas subjected

to the degraded practice of untouchability. There are other

sections leading nomadic lives untouched by civilization;

social evolution has not reached them. The original inhabitants

of this country, the Adivasis are now commonly known as the

Scheduled Tribes.

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The abominable practices in the Hindu society had

permanently deprived basic human rights to a vast majority.

Economic development of the lower castes was an impossibility

because of the entrenched social inequalities. Even right to

worship in temples depended upon birth factor which was

judicially recognized in 19073. Different legal principles came to

be evolved in the administration of civil and criminal justice to

members of different castes.

How Social and Economic Justice became integral to

the Constitution:

Let me recount the history as to how the Social and

Economic justice became an inalienable part of our

Constitution. Sir B.N.Rau, the Adviser to the Constituent

Assembly had prepared a rough draft which formed the

basis for discussion by the Drafting Committee of the

Constitution. The Constituent Assembly met on 9th

December, 1946 in the undivided India, took up for

consideration the draft Constitution prepared by

the Drafting Committee on 15th November, 1948 and

concluded the discussion on October 17, 1949. Thereafter

appropriate re-numbering of the Articles was done by the

Drafting Committee and the revised Constitution was

adopted by the Constituent Assembly on 26th November,

1949 and our Country emerged as the Republic on 26th

January, 1950. In the preamble part of the Constitution as

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finally adopted by the Constituent Assembly, the words

Justice, Social and Economic occur. The preamble reads:

“ We, THE PEOPLE OF INDIA, having solemnly

resolved to constitute India into a Sovereign,

Democratic Republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and

worship;

Equality of status and of opportunity;

And to promote among them all

Fraternity assuring the dignity of the individual and

the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this Twenty Sixth

Day of November, 1949, do HEREBY ADOPT, ENACT

AND GIVE TO OURSELVES THIS CONSTITUTION.”

On the eve of the meeting of the Constituent Assembly, the

Indian National Congress passed a resolution on November

20, 1946 declaring among other things that –

“It stands for an independent sovereign republic

wherein all powers and authority are derived from the

people, and for a Constitution wherein social

objectives are laid down to promote freedom,

progress and equal opportunity for all the People of

India…..”.

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(B.Shiva Rao: The Framing of Indian Constitution – Vol. I

page 342)4.

It is therefore clear that Social and Economic Justice

would form the foundations of the Constitution was

indicated even before the Constituent Assembly began its

work.

While introducing the Objectives Resolution in the

Constituent Assembly Pandit Jawaharlal Nehru said in

emphatic terms:

“we have given the content of democracy in this

Resolution and not only the content of democracy but the

content, if I may say so of economic democracy in this

Resolution”.

Clarifying the position for not mentioning the word “socialism” in

the Resolution:

“well, I stand for socialism and I hope India will stand for

socialism and that India will go towards the constitution of

a socialist State and I do believe that the whole world will

have to go that way. What form of socialism again is

another matter for your consideration but the main thing

is that in such a Resolution, if, in accordance with my own

desire, I had put in, that we want a socialist state, we

would have put in something which may be agreeable to

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many and may not be agreeable to some and we wanted

this Resolution not to be controversial in regard to such

matters. Therefore we have laid down, not theoretical

words and formulae, but rather the content of the thing we

desire. This is important and I take it there can be no

dispute about it”.

(Constituent Assembly Debates, Volume I, page 62)5 .

The doubt expressed by Pandit Jawaharlal Nehru that there

might not be unanimity to make India a socialist state proved to

be unfounded. Despite the absence of the word “socialist,”

Pandit Nehru himself admitted that the content of socialism was

incorporated in the Objectives Resolution6.

Participating in the debate Dr. Ambedkar who later on

became the Chairman of the Drafting Committee had foreseen

the difficulties in theoretical declarations unaccompanied by the

methods to achieve the same. In other words rights conferred

without remedies to achieve them would be of no use,

Dr.Ambedkar thought at that time. In his own words:-

“Sir, there are here certain provisions which speak of

justice, economic, social and political. If this Resolution

has a reality behind it and sincerity, of which I have not

the least doubt, coming as it does from the mover of the

resolution, I should have expected some provision

whereby it would have been possible for the State to

make economic, social and political justice a reality and I

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should have from that point of view expected the

Resolution to state in most explicit terms that in order

there may be social and economic justice in the country,

that there would be nationalization of industry and

nationalization of land, I do not understand how it could

be, possible for any future Government which believes in

doing justice socially, economically and politically, unless

its economy is a socialist economy. Therefore, personally,

although I have no objection to the enunciation of these

propositions, the resolution is, to my mind, somewhat

disappointing”.

(Constituent Assembly Debates, Volume I, page 100)7

Shri Jaipal Singh leader of the Adivasis, participating in the

debate poignantly described the plight of his people, the original

natives of this country, who had been driven out from Indus

valley and condemned as jungalies. Shri Jaipal Singh on behalf

of thirty million Adivasis reposed faith in Pandit Jawaharlal

Nehru’s Objectives Resolution and what all he demanded was

that his people who had been neglected for over six thousand

years should be treated as equals with other Indians.

“I am convinced that not only the mover of this resolution,

Pandit Jawaharlal Nehru, but everyone here will deal with

us justly. It is only by dealing justly and not by a

proclamation of empty words that we would be able to

shape a Constitution which would mean a real freedom”.

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(Constituent Assembly Debates, Volume I, page 144-145)8.

In his speech winding up the debate Pandit Nehru clearly spelt

out the task of the Constituent Assembly:

“The first task of this Assembly is to free India through a

new Constitution to feed the starving people and clothe

the naked masses and to give every Indian fullest

opportunity to develop himself according to his capacity.

This is certainly a great task”.

(Constituent Assembly Debates, Volume I, page 316)9.

The Objectives Resolution was passed unanimously by

the Constituent Assembly on 22-1-1947: paras 4, 5 and 6

which are relevant read as follows:-

“(4) wherein all power and authority of the Sovereign

Independent India, its constitutional parts and organs

of government, are derived from the People; and

(5) wherein shall be guaranteed and secured to all the

People of India, Justice, Social, Economic and Political;

equality of status of opportunity, and before the law:

freedom of thought, expression, belief, faith, worship,

vocation, association and action, subject to law and

public morality; and

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(6) wherein adequate safeguards shall be provided for

minorities, backward and tribal areas, and depressed

and other backward classes; and “… (emphasis

added)

(B.Shiva Rao: The Framing of Indian Constitution – Vol. II

page 4)10.

The discussion on the preamble part of the

Constitution was taken up at the end after all the clauses of

the Constitution were discussed and finalized. The preamble

should be in conformity with the Constitution as adopted by

the Constituent Assembly was the convincing reason stated

by the President of the Constituent Assembly. (B.Shiva

Rao: The Framing of Indian Constitution – Vol. V page

130)11.

Rejection of the Twist:

The debate on the preamble unfolded a very

interesting aspect. Shri H.V.Kamath, a renowned Socialist,

and a leading member of the Constituent Assembly moved

an amendment to the preamble to the effect that the first

sentence of the preamble should read:

” In the name of God, We the People of India having

solemnly resolved to constitute India into a sovereign

democratic republic and to secure to all her

citizens…..”

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(The Constituent Assembly Debates Vol. X page 439)12.

Shri Kamath wanted that –

“the Constitution should be consecrated by a solemnly

dedication to God in the spirit of the Geetha”.

The amendment was supported by a few and opposed by

many. Shri M.Thirumala Rao opposing the amendment had

pleaded that –

“God should not be subjected to the vote of the

House”.

Pandit H.N.Kunzru while opposing the amendment said

that-

“Sacred feeling should not have been brought into the

array of discussion. The proposed amendment was

inconsistent with the preamble which promises liberty

of thought, expression, belief, faith and worship to

everyone”.

Thereafter Shri Kamath pressed for a vote and the

amendment was negatived by 41 against 68. Reacting to

this, Shri Kamath said –

“This, Friday, is a black day in our annals. God save

India”.

(The Constituent Assembly Debates Vol. X page 442)13.

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The socio economic justice as visualized by the Indian

Constitution is found mostly in the Directive Principles of

State Policy – Part IV of the Constitution of India and to a

little extent in the Chapter on Fundamental Rights and

certain other provisions of the Constitution. Sir B.N.Rau

whose draft Constitution based upon the 1935 Government

of India Act was responsible for the Chapter on Directive

Principles, the concept and details of which were borrowed

from the Irish Constitution. The International Bill of Rights

of Man prepared by Prof. Lauterpacht, a Judge of the

International Court of Justice also was a source for the

Directive Principles. Sir B.N.Rau was very much impressed

by the classification of rights into enforceable and

unenforceable as stated by Judge Lauterpacht. The draft

prepared by Sir B.N.Rau was in two parts – Part A dealing

with principles “intended for the general guidance of the

appropriate legislatures and governments in India” and

“shall not be cognizable by any Courts”. What now

attained finality as Directive Principles on State Policy

mostly are traceable to the aforesaid Part A. Justiciable

rights which are enforceable through Courts of law were

included by Sir B.N.Rau in Part B and in their final form

they emerged as Fundamental Rights in Part III of the

Constitution of India.

The following are the seven clauses in Part A of the draft

prepared by Sir B.N.Rau:

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“1. The State shall promote international peace and

security by the elimination of war as an instrument of

national policy, by the prescription of open, just and

honourable relations between nations, by the firm

establishment of the understanding of international

law as the actual rule of conduct among governments

and by the maintenance of justice and the scrupulous

respect for treaty obligations in the dealings of

organized people with one another.

2. The State shall promote internal peace and

security by the elimination of every cause of

communal discord.

3. The State shall, as far as possible, secure to each

citizen;

(1) the right to work;

(2) the right to education;

(3) the right to maintenance in old age and during

sick ness or loss of capacity to work,

(4) the right to rest and leisure;

in particular, the State shall make provision for free

and compulsory primary education.

4. The State shall promote with special care the

educational and economic interests of the weaker

sections of the people and, in particular, of the

scheduled castes and the aboriginal tribes, and shall

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protect them from social injustice and all form of

exploitation.

5. The State shall protect the culture, language and

script of the various communities and linguistic areas

in India.

6. The State shall regard the raising of the level of

nutrition and the standard of living of its people and

the improvement of public health as among its

primary duties.

7. The State shall ensure that the strength and health

of workers, men and women, and the tender age of

children shall not be abused and that they shall not be

forced by economic necessity to take up occupations

unsuited to their sex, age or strength”.

The first clause was taken from the declaration of Havana

made in 1939. The second, fourth and fifth clauses are

peculiarly needed in India. The third clause was borrowed

mostly from Articles 42 and 45 of the Irish Constitution.

(India’s Constitution in the making by Sir B.N.Rau, pages

250-251)14.

The Sub Committee on Fundamental Rights headed by

Shri J.B.Kirpalani discussed the Directive Principles along

with certain other articles between 27-2-1947 and

31-3-1947. The report of the Sub Committee was

submitted on 16-4-1947 to Sardar Vallabhai Patel,

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Chairman of the Advisory Committee. Unenforceable rights

which subsequently renamed as Directive Principles are

found in Part II of the Annexure to the report of the Sub

Committee. Both the enforceable and unenforceable rights

were clubbed together under the heading Fundamental

Rights. Clauses 33 to 45 comprising Part II contain this

unenforceable rights reflecting the future economic and

social democracy of the Country. The report of the Sub

Committee as finalized by the drafting committee was

discussed and finalized by the Constituent Assembly. The

object of incorporating Directive Principles in the

Constitution was explained with telling effect by

Dr.Ambedkar in the Constituent Assembly at the time of

discussion:

“ We do not want merely to lay down a mechanism to

enable people to come and capture power. The

Constitution also wishes to lay down an ideal before

those who would be forming the Government. That

ideal is economic democracy, whereby, so far as I am

concerned, I understand to mean, ‘one man one vote’.

The question is: Have we got any fixed idea as to

how we should bring about economic democracy?

There are various ways in which people believe that

economic democracy can be brought about; there are

those who believe in individualism as the best form of

economic democracy, there are those who believe in

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having a socialistic state as the best form of economic

democracy; there are those who believe in the

communistic idea as the most perfect form of

economic democracy.

Now, having regard to the fact that there are

various ways by which economic democracy may be

brought about, we have deliberately introduced in the

language that we have used, in the directive

principles, something which is not fixed or rigid. We

have left enough room for people of different ways of

thinking, with regard to the reaching of the ideal of

economic democracy, to strive in their own way, to

persuade the electorate that it is the best way of

reaching economic democracy, the fullest opportunity

to act in the way in which they want to act.

Sir, that is the reason why the language of the

Articles in Part IV is left in the manner in which this

Drafting Committee thought it best to leave it. It is

no use giving a fixed, rigid form to something which is

not rigid, which is fundamentally changing and must,

having regard to the circumstances and the times,

keep on changing. It is, therefore, no use saying that

the directive principles have no value. In my

judgment, the directive principles have a great value,

for they lay down that our ideal is economic

democracy. Because we did not want merely a

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parliamentary form of Government to be instituted

through the various mechanisms provided in the

Constitution, without any direction as to what our

economic ideal, as to what our social order ought to

be, we deliberately included the Directive Principles in

our Constitution”. (emphasis added)

(Constituent Assembly Debates Vol.No.VII page 494)15.

The binding nature of the Directive Principles which

are in the nature of Instruments of Instructions (to the

Legislature and Executive) under the Government of India

Act, 1935 was explained by Dr.Ambedkar in the Constituent

Assembly while stating that Ireland is the only Country

which incorporated in its Constitution directives to the

State.

“The inclusion of such instructions in a Constitution

such as is proposed in the Draft becomes justifiable

for another reason. The Draft Constitution as framed

only provides a machinery for the government of the

country. It is not a contrivance to instal any particular

party in power as has been done in some countries.

Who should be in power is left to be determined by

the people, as it must be, if the system is to satisfy

the tests of democracy. But whoever captures power

will not be free to do what he likes with it. In the

exercise of it, he will have to respect these

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instruments of instructions which are called Directive

Principles. He cannot ignore them. He may not have

to answer for their breach in a Court of Law. But he

will certainly have to answer for them before the

electorate at election time. What great value these

directive principles possess will be realized better

when the forces of right contrive to capture power”.

(emphasis added)

(Constituent Assembly Debates Vol.No.VII page 41)16.

The significance of expression “Directives” was also

explained by Dr.Ambedkar:

“ With regard to the word “directive” I think it is

necessary and important that the word should be

retained because it is to be understood that in

enacting this part of the constitution the Constituent

Assembly, as I said, is giving certain directions to the

future legislature and the future executive to show in

what manner they are to exercise the legislative and

the executive power which they will have. If the word

“directive” is omitted I am afraid the intention of the

Constituent Assembly in enacting this part will fail in

its purpose. Surely, as some have said, it is not the

intention of this Assembly that in future both the

legislature and the executive should not merely pay lip

service to these principles enacted in this part, but

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that they should be made the basis of all executive

and legislative action that may be taken hereafter in

the matter of the governance of the country. I

therefore submit that both the words “fundamental”

and “directive” are necessary and should be retained”.

(Constituent Assembly Debates Vol.VII page 476)17 .

The Directive Principles though not justiciable the

courts have always treated the same as aids to statutory

interpretation in the context of interpretation of social and

economic justice by Legislation. In the interpretation of Gratuity

Act Directive Principle was invoked by Courts as affording

guidance to statutory construction. The latest ruling in this

regard is Allahabad Bank and Anr. Vs All India Allahabad Bank

Retired Employees Association18.

Our Constitution incorporates the principles of social justice

besides the preamble in parts III, IV X,XVI, Schedule V and VI

(in particular Articles 14,15(4),15(5), 16(4),16(4 A),16

(4B),17,19,23,24,38,39,40,46, 330,332 and 334,335 to 342.

Articles 14 to 16 incorporate principles of equality and non

discrimination while at the same time they also comprehend

affirmative action in clauses (4) and (5) of Article 15 and

clauses 4,4A and 4B of Article 16. By Article 17 the abominable

and degraded practice of untouchability was abolished and

untouchability practiced in any form was made penal offence.

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Articles 23 and 24 relate to right against exploitation and

prohibition of forced labour and employment of children in

factories. Articles 38 to 48 forming part of directive principles

embodied in Part IV incorporate the principles for socio

economic transformation of the society. Special mention has to

be made in respect of Article 46 directing the state to promote

the educational and economic interests of weaker sections and

in particular Scheduled Castes, Scheduled Tribes and other

Backward Classes. Articles 330, 332 relate to reservation of

seats in Lok Sabha and Legislative Assembalies in favour of

Scheduled Castes and Scheduled Tribes in Lok Sabha and

Legislative Assemblies of the State and seats so reserved are

in proportion to their population. Article 335 recognises the

claims of the members of Scheduled Castes and Scheduled

Tribes for appointment to services and posts in the Union and

the States consistent with the maintenance of efficiency in

administration. By the Constitution (82nd Amendment) Act 2000

the state is empowered to relax qualifying marks in any

examination or lowering of standards of evaluation in matters of

promotion concerning Scheduled Castes and Scheduled

Tribes. By the Constitution 65th Amendment Act, Article 338

was amended by which in the place of the Special Officer for

the Scheduled Castes and Scheduled Tribes, a National

Commission was established to investigate and monitor all

matters relating to the safeguards provided for these classes, to

enquire into specific complaints with regard to deprivation of

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rights and safeguards, to render advice on the planning process

of their socio economic development and to evaluate the

progress achieved. The report submitted by the Commission to

the President shall be laid before both the Houses of

Parliament alongwith a memorandum explaining the action

taken or proposed to be taken and the reasons for non-

acceptance if any, of the recommendations. Articles 341 and

342 empower the President to issue notifications specifying

Scheduled Castes and Scheduled Tribes.

The Constitutional safeguards cover a

wide spectrum- from abolition of untouchability to reservations

in educational institutions, posts in public services, seats in law

making bodies- both at the State and the National levels,

appointment of a Commission to oversee the implementation of

the constitutional safeguards and to investigate their conditions

and a special procedure for administration of tribal areas.

Special laws were enacted for abolition of bonded labour,

protection of civil rights, curbing atrocities on members of

Scheduled Castes and Scheduled Tribes and liberating them

from the clutches of money lenders. Several administrative

measures were also initiated for improving their economic lot19.

Clause (b) of Article 39 lays down that the

policy of the State should be directed towards securing that the

ownership and control of material resources of the community

are so distributed as best to sub serve the common good, and

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clause ( c) obligates that the economic system should not result

in the concentration of wealth and means of production to the

common detriment. Adverting to this aspect a seven judge

bench of the Supreme Court in State of Karnataka Vs

Ranganatha Reddy & Anr20 in the context of the nationalisation

of motor transport business ruled that Article 39 (b) takes within

its ambit nationalisation. The court rejected the argument that

the private resources are not covered by Article 39(b); on the

other hand all private means of production the court held fall

within the ambit of Article 39(b). Interpreting the word

“distribute” in Article 39(b) the court held that nationalisation

has nexus with distribution. The court’s conclusion is that Part

IV of the Constitution especially Article 39(b) and 39(c) is a

futuristic mandate to the State with a message of

transformation of the economic and social order.

The Parliament in order to give primacy to the

Directive Principles had enacted the Constitution (Twenty Fifth

Amendment) Act by which Article 31C was inserted as a

consequence of which any law made by the State for

distribution of material resources of the community {Article 39

(b)} and for the prevention of concentration of wealth {Article 39

(c)} was insulated from challenge on the ground of breach of

Articles 14 and 19. Article 39C also lays down that any law

which contains a declaration that it was enacted for giving

effect to the State policy contained in Article 39(b) or Article

39(c) shall not be questioned in any court on the ground that it

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does not give effect to such a policy. This part of Article 31C

prohibiting enquiry by any court was declared invalid in

Keshavananda Bharati case(AIR 1973 SC 1461). For our

purpose it is relevant to notice that while stating illustratively

what constitute the basic structure which is beyond the power

of amendment. Justice Jagmohan Reddy mentioned among

other things “Justice, social, economic and political”. No

contrary view was expressed by the other judges. It is a well

accepted principle of interpretation, that when separate but

concurrent judgments are rendered, the view expressed in each

of the separate judgments must be treated as the concurrent

view of the majority. We can therefore undoubtedly assume that

economic and social justice are permanent basic features of the

Constitution which cannot be amended by Parliament either in

exercise of its legislative or constituent power.

By clause (1) of Article 341 the President is empowered

to specify the castes, races or tribes or groups which for the

purpose of the Constitution shall be deemed to be Scheduled

Castes in relation to the Union Territory or the State as the

case may be. There is no All India List of Scheduled Castes

and Article 341(1) contemplates separate list for each State and

the Union Territories. The Presidential notification issued under

clause (1) cannot be amended except by a law made by

Parliament under clause (2) of Article 341. Similar provisions

are there in respect of Scheduled Tribe in Article 342. Because

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of these safeguards, clauses (24) and (25) of Article 366 which

deal with definitions, merely refer to Article 341 and 342 to

indicate what are Scheduled Castes and Scheduled Tribes. The

Government of India Act 1935 contained provisions for

reservation of seats in favour of Scheduled Castes, Backward

areas and Backward Tribes (Section 61 and Schedule V of the

Government of India Act,1935). For giving effect to this the

Government of India (Scheduled Castes) Order 1936 was

issued by which certain groups which were subjected to the

inhuman and degraded practice of untouchability were included

in that Order. Untouchability was the primary factor for inclusion

in the 1936 Order. This was basically reflected in 1950 in the

form of the Constitution(Scheduled Castes) Order 1950. In its

original form clause (3) of the above Order contemplated that

only classes and groups belonging to Hindu religion subjected

to untouchability should be included in the Scheduled Castes

Order. Subsequently by an amendment in 1956 persons

belonging to Sikh and Buddhist religions also were made

eligible for being treated as members of Scheduled Castes,

obviously for the reason that they still suffer untouchability even

after their conversion into these religions. Now demands are

made by communities like “Dalit Christians and Dalit Muslims”

for inclusion in the Scheduled Castes Order advancing the

argument that they are still subjected to untouchability. The

matter is pending adjudication in the Supreme Court. An

empirical realistic view is needed to decide whether

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untouchability which was suffered by Dalits in Hindu religion is

prevalent in Christianity and Islam which are founded upon

social equality.

Religion has no relevance so far as identification of

Scheduled tribes are concerned. Scheduled Tribes are not

castes in the customary sense. In order to give effect to the

provisions of Government of India Act, 1935 relating to special

electoral representation to Backward Tribes in the Provincial

Legislative Assemblies the Government of India issued an

Order listing the Backward Tribes.

Determination of the claimed status:

Reservation of seats in Lok Sabha and Legislative

Assemblies in favour of Scheduled Castes and Scheduled

Tribes is in proportion to their population (Article 330-332).

There is plethora of case law relating to conversions and the

loss of status for claiming the benefits conferred on members of

Scheduled Castes and Scheduled Tribes. In order to find out

whether or not a particular caste is Scheduled Caste within the

meaning of Article 341 the decisive factor is the notification

issued by the President of India in that behalf. It is not open to a

person to lead evidence that although he does not belong to a

listed Scheduled Caste but the caste to which he belongs also

has similar characteristics of another listed class or it is its

synonymn. See: Bhaiyalal Vs Harilal21 Parasaram Vs

Shivchand22. Conversion operates as an expulsion from the

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caste. If a member of a Scheduled Caste converts to

Christianity he loses his caste – he doesn’t belong to any caste.

See: Rajgopal Vs Armugam23.

Recognition received by a person from the

members of the caste into which he was admitted is the real

test for determining his caste status. Even if a person belonging

to a Scheduled Tribe declares himself to be a member of a

higher caste about which there is no evidence of the higher

caste acknowledging him as one of its members still, he would

remain a member of Scheduled Tribe and so eligible to contest

for a reserved seat. See: V.V.Giri Vs D.Suri Dora24

When a woman belonging to Christian religion

married a tribal and the marriage was approved by the tribal

community which accepted it as its member, the Supreme

Court held that she is entitled to contest from a seat reserved

for Scheduled Tribes. See: Horo Vs Jahanara Jaipal, Singh25

Reservations for Admissions in Educational Institutions

and Appointments to Posts under the Government:

One aspect of social justice is by providing reservations in

educational institutions and jobs in public employment in favour

of backward classes. The term backward classes encompasses

Scheduled Castes, Scheduled Tribes and other Backward

Classes.

At the time when the Constitution was enacted there was no

difficulty in identifying scheduled castes and scheduled tribes

27

but other backward classes were not identified in many States.

Reservations in favour of the other backward classes were in

force in some of the southern states but hardly in any of the

northern states. When special care was taken by enacting

Article 338 for appointment of a special officer to safeguard the

interests of scheduled castes and scheduled tribes as the other

backward classes were not identified, the responsibility of

taking care of their interests was entrusted to the Commission

for Scheduled Castes and Scheduled Tribes. Article 340 which

was in the original Constitution envisages the appointment of

Commission by the President of India:

“to investigate the conditions of socially and educationally

backward classes within the territory of India and difficulties in

which they labour and to make recommendations” for removing

their difficulties and improve their conditions of living and the

financial aid to be given by the Union and States. After the

Mandal Commission, appointed under Article 340, made its

recommendations which in substance were held to be valid in

Indra Sawhney’s case, there is a compelling necessity to

appoint a separate commission for safeguarding the interests of

socially and educationally backward classes. But paradoxically

inspite of constituting a National Commission for Backward

Classes by a parliamentary enactment, the responsibility of

safeguarding the interests of other backward classes was not

entrusted to that Commission. The National Commission for

Scheduled Castes which was entrusted with the responsibility

28

of protecting the interests of Backward classes by virtue of

Article 338(10) is not in a position to discharge its responsibility

for a variety of reasons. In fact it has expressed its

unwillingness in this regard and suggested that the National

Commission for Backward Classes should be asked to take

over this responsibility. For reasons not discernible, the Union

of India has not taken up this important issue which concerns

55% of the total population of this country.

It is significant to notice that when backward classes are

referred to as “socially and educationally backward classes” in

Article 340(1) whether the expression “backward class of

citizens” used in Article 16(4) only means socially and

educationally backward classes or it includes other classes

also? The Supreme Court had taken a slightly different stand

on this question in Indra Sawhney case. Justice Jeevan Reddy

who spoke for the majority drew a line of distinction between

Article 16(4) and 15(4) by observing that “certain classes which

may not qualify for Article 15(4) may qualify for Article 16(4)”.

This view appears to be unrealistic Article 15(4) covers socially

and educationally backward classes as well as Scheduled

castes and Scheduled Tribes. Article 340 (1) envisages

separate presidential commission for socially and educationally

backward classes who are specifically covered by Article 15(4)

as there are separate provisions in this regard for Scheduled

Castes and Scheduled Tribess. The expression “backward

class” in Article 16(4) covers a vide range comprehending

29

Scheduled Castes, Scheduled Tribes and Socially and

Educationally Backward Classes. This was made clear in the

Constituent Assembly by Shri K.M.Munshi, a member of the

Drafting Committee while clarifying the doubt expressed by

some whether backward classes include Scheduled Castes

also. He said:

“I cannot also imagine a time when there is any backward class

in India which does not include the Scheduled

Caste……..There need, therefore, be no fear that the house, as

constituted at present or hereafter, will ever make a distinction

or discriminate against the Scheduled Castes. That fear, I think,

is entirely unfounded……..it is perfectly clear that the word

“backward” signifies that class of people –does not matter

whether you call them untouchables or touchables, belonging to

this community or that ,-a class of people who are so backward

that special protection is required in the services and I see no

reason why any member should be apprehensive of regard to

the word “backward”26.

Apart from Scheduled Castes, Scheduled Tribes and Socially

and Educationally Backward Classes covered by Article 15(4) it

is well-nigh impossible to conceive of any other class of people

who could be called backward class falling within the ambit of

Article 16(4).

Article 15 (1) incorporates the principle of non discrimination. It

prohibits discrimination on grounds of religion, race, caste, sex

or any of them. Article 16 (1) guarantees equality of opportunity

30

in matters of public employment. Clause (4) of Article 16

confers power on the State to make provision for reservation of

appointments in favour of any backward class of citizens which

in the opinion of State is not adequately represented in the

services under the State. What is noteworthy is that when

specific provision was made in clause (4) of Article 16 in the

original Constitution providing for reservation in appointments in

favour of backward classes, no similar provision was

incorporated for admission to educational institutions. This

omission was brought to light when the Supreme Court ruled in

State of Madras Vs Champkam Dorairajan27. An order of the

Government of Madras commonly referred to as ”Communal

G.O.” reserving seats to persons of different communities was

declared as unconstitutional being violative of Article 15(1). The

attempt of the State to sustain its legality on the basis of the

Directive Principle in Article 46 enjoining the State to promote

the educational and economic interests of Scheduled Castes

and Scheduled Tribes and Other Backward Classes did not

succeed. A necessity therefore had arisen to incorporate a

special provision dealing with reservations in educational

institutions.

Clause (4) of Article 15 was inserted by the Constitution

First Amendment Act in 1951 conferring power on the State to

make special provision

“for the advancement of any social and educationally Backward

Classes of citizens or Scheduled Castes and Scheduled Tribes”

31

notwithstanding the embargo of non discrimination contained in

Article 15 or the prohibition contained in clause (2) of Article 29

by which no citizen shall be denied admission into educational

institutions maintained by the State or receiving State aid on

grounds only of religion, race, caste, language or any of them.

The communal G.O of the erstwhile Madras Presidency

had distributed the posts to several classes of people by the

following method:-

Harijans 19

Muslims 5

Christians 6

Backward Hindus 10

Non Brahmin Hindus 32

Brahmins 11

In relation to posts in judicial service the constitutionality of the

aforesaid communal G.O came up for consideration before the

Supreme Court in Venkataramana Vs State of Madras28. The

Petitioner belonging to Brahmin caste, an unsuccessful

candidate for appointment to the post of District Munsif

contended that as only eleven posts are reserved for Brahmins

his Fundamental Right under Article 16(1) was violated as he

was denied consideration for the other posts in excess of

eleven, only on the basis of his caste. The Supreme Court

upheld the contention and struck down the communal G.O. The

reasoning of the Supreme Court which spoke through Justice

S.R.Das (as he then was) needs careful notice. The Supreme

32

Court accepted reservation in favour of backward Class of

citizens (Harijans and Backward Hindus) but found fault only

with regard to reservation in favour of other classes.

“As regards the posts reserved for Harijans and Backward

Hindus, it may be said that the petitioner, who does not belong

to those two classes, is regarded as ineligible for those

reserved posts not on the ground of religion, race, caste, etc.,

but because of the necessity for making a provision for

reservation of such posts in favour of a backward class of

citizens, but the ineligibility of the petitioner for any of the posts

reserved for communities other then Harijans and Backward

Hindus cannot but be regarded as founded on the ground only

of his being a Brahmin. For instance, the petitioner may be far

better qualified than a Muslim or a Christian or a non-Brahmin

candidate and if all the posts reserved for those communities

were open to him, he would be eligible for appointment, as is

conceded by the learned Advocate-General of Madras, but

nevertheless, he cannot expect to get any of those posts re-

served for those different categories only because he happens

to be a Brahmin. His ineligibility for any of the posts reserved

for the other communities, although he may have far better

qualifications than those possessed by members falling within

those categories, is brought about only because he is a

Brahmin and does not belong to any of those categories. This

ineligibility created by the communal G.O., does not appear to

us to be sanctioned by clause (4) of Article 16 and it is an

33

infringement of the fundamental right guaranteed to the

petitioner as an individual citizen under Article 16 (1) and (2).

The communal G.O., in our opinion is repugnant to the

provisions of Article 16 and is as such void and illegal.”

A Backward Class is synonymous to Backward Caste was

declared by Dr.Ambedkar while moving the Constitution First

Amendment Bill in Parliament in 1951. The same Constituent

Assembly which enacted the Constitution continued to function

as Parliament till 1952 when General Elections were held to

both houses of Parliament. Dr.Ambedkar’s speech clearly

brings out:

(1) A Backward Class is nothing but a Backward Caste.

(2) An obligation is cast upon the State under Article 46 to

promote the welfare of the weaker sections.

(3) The weaker sections are Backward Classes and others

who for the moment are not able to stand on their legs –

the Scheduled Castes and Scheduled Tribes.

“Every Hindu has a caste - he is either a Brahmin or a

Maratha or a Kundby or a Kumbhar or a Carpenter. There

is no Hindu-that is the fundamental proposition-who has

not a caste. Consequently, if you make a reservation in

favour of what are called Backward Classes which are

nothing else but a collection of certain castes, those who

are excluded are persons who belong to certain castes.

Therefore, in the circumstances of this country, it is

34

impossible to avoid reservation without excluding some

people who have got a caste. On these points, I do not

think personally that the judgment is a very satisfactory

judgment….Now the point has to be borne in mind that in

Article 46 of the Directive Principles, an obligation has

been laid upon the Government to do everything possible

in order to promote the welfare and in the interest of what

are called the weaker sections of the public by which I

understand to mean the Backward Classes or such other

classes who are for the moment not able to stand on their

legs - the Scheduled Castes and the Scheduled Tribes. It

is, therefore, incumbent not merely on the Government but

upon this Parliament to do everything in its hands to see

that Article 46 is fulfilled and if that fulfilment is to come. I

cannot see how one can escape an amendment so as to

prevent Article 29 clause (2) and Article 16 clause (4) being

interpreted in the way in which it has been interpreted and

being made to block the advancement of the people who

are spoken of as the weaker class. That is the necessity for

amending Article 15.”

By the Constitution (Ninety Third Amendment) Act 2005 state is

empowered to make special provision for advancement of

socially and educationally backward classes, Scheduled Castes

and Scheduled Tribes providing for admission to educational

institutions including private educational institutions whether

35

aided or unaided by the State. This is very significant step in

the direction of ensuring social justice. Prestigious educational

institutions like Indian Institute of Technology (I.I.Ts) and Indian

Institute of Management (I.I.M’s) averse from the beginning to

earmark seats to students belonging to Scheduled Castes,

Scheduled Tribes and Other Backward Classes taking a rigid

stand that dilution of standards at the admission stage would

result in erosion of merit. The constitutionality of Ninety Third

Amendment was upheld by the Supreme Court in Ashok Kumar

Thakur Vs Union of India29. The majority judgment recognizes

the fact that higher education results in obliteration of social

backwardness which ultimately would result in elimination of

caste differences. The Ninety Third Amendment which is

conceived of as an affirmative action does not infringe the

principles of equality nor does it violate the basic structure of

the Constitution.

In the opinion of Chief Justice Balakrishnan:

“Reservation is one of the many tools that are used to preserve

and promote the essence of equality, so that disadvantaged

groups can be brought to the forefront of civil life. It is also the

duty of the State to promote positive measures to remove

barriers of inequality and enable diverse communities to enjoy

the freedoms and share the benefits guaranteed by the

Constitution. In the context of education, any measure that

promotes the sharing of knowledge, information and ideas, and

encourages and improves learning, among India’s vastly

36

diverse classes deserves encouragement. To cope with the

modern world and its complexities and turbulent problem,

education is a must and cannot remain cloistered for the benefit

of a privileged few. Reservations provide that extra advantage

to those persons who, without such support, can forever only

dream of university education, without ever being able to realize

it. This advantage is necessary. In the words of President

Lyndon Johnson,

“You do not take a person who, for years, has been hobbled by

chains and liberate him, bring him up to the starting line and

then say, ‘you are free to compete with all the others…30”

How the Judiciary viewed Reservations:

I shall briefly refer to leading decisions rendered by

Supreme Court on the question of reservations in favour of

backward classes (including scheduled castes and scheduled

tribes).

Reservation in selection posts by way of promotion in favour of

Scheduled Caste came up for consideration before the

Supreme Court in General Manager Southern Railway Vs

Rangachari31 by a majority of 3:2 the reservation was upheld

Speaking for the majority Gajendragadkar J., (as he then was)

held that advancement of Backward Classes require not only

representation in the lower rung of services but in selection

posts also and that matters relating to employment in Article

16(1) include all matters in relation to employment both prior

37

and subsequent to employment. Adequate representation

implies consideration of

“size as well as values, numbers as well as the nature of

appointments held and it also involves not merely the numerical

test but also the qualitative work”

The minority judgments of WanchooJ.(as he then was)

and Rajagopalachari Iyengar J., laid emphasis that inadequacy

of representation of Backward class of citizens under Article

16(4) is referrable to qualitative deficiency but not inadequate

representation in each grade of service.

The majority judgment in Rangachari case was overruled by the

majority in Indra Sawhney case. While not disagreeing with the

view of Rangachari, the majority judgment delivered by Justice

Jeevan Reddy in Indra Sawhney case construed Article 16(4)

conjointly with Article 335 which speaks of efficiency of

administration and held that it would be unwise to provide

reservations in promotion at the cost of efficiency. The

reasoning of Jeevan Reddy J. speaking for the majority is:

“While it is certainly just to say that a handicap should be given

to backward class of citizens at the stage of initial appointment,

it would be serious and unacceptable inroad into the rule of

equality of opportunity to say that such a handicap should be

provided at every stage of promotion throughout their career.

That would mean creation of a permanent separate category

apart from the mainstream- a vertical division of the

administrative apparatus. The members of reserved categories

38

need not have to compete with others but only among

themselves. There would be no will to work, compete and excel

among them. Whether they work or not, they tend to think, their

promotion is assured. This in turn is bound to generate a feeling

of dependence and heart burning among open competition

members. All this is bound to affect the efficiency of

administration. Putting the members of backward classes on a

fast tract would necessarily result in leap frogging and the

deleterious effects of leap frogging need no illustration at our

hands.”

Although in one respect regarding reservations in promotion

Rangachari was overruled by Indra Sawhney, all lingering

doubts as to whether backward Class of citizens in Article 16(4)

includes Scheduled Castes was settled by Rangachari beyond

any shadow of doubt. Predictably no subsequent decision of

the Supreme Court has permitted any debate on this aspect.

What is of utmost significance is that Indra Sawhney had

nothing to do with reservations relating to Scheduled castes

and Scheduled Tribes in public services. That question did not

arise at all. A.M.Ahmedi J.( as he then was) in his dissenting

judgment referred to this aspect and held that the question

need not be considered as the case pertained to only other

Backward classes excluding Scheduled Castes and Scheduled

Tribes in relation to whom Mandal commission was appointed.

The majority judgment in Mandal case had resulted in the

Parliament enacting the Constitution (Seventy Seventh)

39

Amendment Act by inserting clause (4A) in Article 16 with

retrospective effect from 17.6.1995.

Clause (4A) reads:

"Nothing in this Article shall prevent the State from making any

provision for reservation in matters of promotion to any class or

classes of posts in the services under the State in favour of the

Scheduled Castes and the Scheduled Tribes which, in the

opinion of the State, are not adequately represented in the

services under the State."

Clause (4A) of Article 16 is confined only to Scheduled Castes

and the Scheduled Tribes in matters relating to promotions, the

justification being inadequate representation in services.

The concept of equality in the context of the claim for

reservation of upgraded posts in favour of Scheduled Castes

and Scheduled Tribes was examined by the Supreme Court in

the Union of India Vs Pushpa Rani32. The court reconciled the

principle of non discrimination with affirmative action. The

affirmative action was held to be an obligation on the part of the

State.

“……….the concept of equality enshrined in Part III and Part IV

of the Constitution has two different dimensions. It embodies

the principle of non discrimination (Articles 14,15(1),(2) and

16(2). At the same time it obligates the state to take affirmative

action for ensuring that unequals (down trodden, oppressed

and have –nots) in the society are brought at a level whereby

40

they can compete with others (haves of the society) Articles

15(3), (4),(5), 16 (4), (4-A), (4-B), 39 39-A and 4133.

The judgments of the Supreme Court in Vinod

Kumar Vs Union of India34 and Ajith Singh III Vs State of

Punjab35 striking down of relaxation of standards in matters of

consideration for promotion to reserved vacancies and

consequential seniority after promotion necessitated three

further Amendments: The Constitution (Eighty Fifth

Amendment) Act 2001 further amended Article 16(4A) w.e.f

17.6.95 providing for consequential seniority for which

reservation is made; The Constitution (Eighty First Amendment)

Act 2000 inserted clause (4B) w.e.f 9.6.2000 in Article 16

treating the reserved vacancies at the promotional level as

separate category to be filled up in subsequent years without

treating them as covered by the ceiling limit of 50%;

The Constitution (Eighty Second Amendment) Act 2000

w.e.f.8.9.2000 introduced the proviso to Article 335 conferring

power on the State to relax qualifying marks in any examination

or lowering the standards for evaluation in respect of

reservation in promotions.

Article 16(4) for a long time was understood as an exception

to the principle of non discrimination embodied in clause (1) of

that Article. Very explicitly this was declared by Supreme Court

in T.Devadasan Vs Union of India36 :-

“A proviso or an exception under Article 16(4) cannot be so

interpreted as to nullify or destroy the main provision”.

41

This view was overturned by a seven member bench in State of

Kerala Vs N.M.Thomas37. The court declared in clear terms that

Article 16(4) is not an exception to Article 16(1). Identification of

backward classes presented considerable difficulty. So far as

Scheduled Castes and Scheduled Tribes are concerned there

was never any doubt from the beginning of the Constitution.

The First major decision explicitly holding that Scheduled caste

and Scheduled Tribe are covered by the expression backward

class of citizens is Rangachari case. In Thomas case the court

also laid down that Scheduled Castes and Scheduled Tribes

are descriptive of backwardness.

Identification of Other Backward Classes:

The first important case in which the identification of

backwardness came up for consideration before Constitution

Bench in Balaji Vs State of Mysore38. The Government of the

erstwhile State of Mysore reserved a total of 68% in educational

institutions under Article 15(4) pursuant to the

recommendations made by a committee headed by

Dr.Naganna Goud. Apart from 15% infavour of Scheduled

Castes and 3% infavour of Scheduled Tribes, the Government

earmarked 28% in favour of backward classes and 22% in

favour of more backward classes. While striking down the

reservation on the ground that it was beyond reasonable limits

being in excess of 50%, the Constitution Bench speaking

42

through Gajendragadkar J., (as he then was) held that the two

Articles 15(4) and 16(4) being special provisions,

(1) The extent of reservations should not be in excess of

50%.

(2) To qualify as backward class the backwardness of any

caste must be social and educational but not either social

or educational. (This view was subsequently approved in

Mandal Case.)

(3) Caste cannot itself be a determining factor in the

identification of backwardness (This was overruled in

Mandal case).

(4) Social backwardness is the result of poverty. (This was

disapproved in Mandal case holding that poverty is the

result of social backwardness.

(5) Backwardness under Article 15(4) must be comparable to

that of Scheduled Castes and Scheduled Tribes. (This

was also disapproved in Mandal case).

(6) The division of backward classes into backward and

more backward was illegal. (This view was not approved

in Mandal case holding that backwardness is not of

uniform nature and some are more backward than others.

If an entire caste is socially and educationally

backward it can be recognized as backward caste was

accepted by the Supreme Court in State of A.P Vs

U.Balram39.

43

Very often we come across criticism that

poverty should be the basis for identification of

backwardness. This was emphatically rejected as far

back as 1973 in Janaki Prasad Vs State of J&K40.

Indra Sawhney Vs Union of India41 is a path

breaking judgment explaining what is social justice in the

Indian context and how the caste factor contributed to

social and educational backwardness of the

overwhelming majority of Hindus.

A Backward Classes Commission headed by

Shri B.P.Mandal was appointed by the President of India

under Article 340 (1). This Commission popularly known

as Mandal Commission was asked to determine the

criteria for identification of socially and educationally

backward classes and to recommend steps to be taken

by the State for their advancement. The Commission after

exhaustive study and after touring all the States and

personally visiting villages in each district submitted its

report within a remarkably short period of one year. The

Commission had taken note of Backward Classes among

non Hindus and estimated the population of Other

Backward Classes at 52%. It strongly recommended that

Other Backward Classes should get a share in the power

structure of the country and highlighted the fact that

making programmes for economic benefit would not be

44

sufficient and that the social structure should be changed

basically.

The Central Government headed by Shri

V.P.Singh issued an order on 13.8.90 reserving 27% of

vacancies in civil posts and services in Government of

India in favour of Other Backward Classes and the

candidates belonging to these classes who were recruited

on the basis of merit must be excluded in the computation

of the quota.

By a subsequent order dtd.25.9.91 the

Government out of the reserved quota of 27%, earmarked

10% in favour of economically backward sections of the

people. The validity of these reservations came up for

consideration in Indra Sawhney Vs Union of India42. Out

of the nine judges, six upheld the order but struck down

the 10% reservation in favour of economically backward

sections. Justice B.P.Jeevan Reddy spoke for four judges

constituting the majority. Ratnavel Pandian J. in his

separate opinion agreed with the majority but expressed

dissent on the question of excluding affluent sections

(creamy layer) among backward classes for the benefits

under Article 15(4) and Article 16(4). Justice Sawant in

his separate judgment agreed with the majority view

expressed by Jeevan Reddy J. Some of the observations

found in the majority judgments are:

45

Backwardness contemplated under Article 16(4) is

mainly social backwardness which leads to educational

and economic backwardness. If some members of any

backward caste are “far too advanced socially” they must

be excluded. The basis of exclusion “should not merely

be economic unless of course the economic

advancement is so high that it necessarily means social

advancement”. To qualify for a backward class a caste

need not be similar to a Scheduled Caste or a Scheduled

Tribe regarding its backwardness. The majority clearly

negatived the test regarding there being similarity

between Scheduled Castes, Schedule Tribes and other

Backward Classes with regard to social backwardness.

“Such a test would practically nullify the provision for

reservation for socially and educationally backward

classes other than Scheduled Castes and Scheduled

Tribes43”.

The majority judgment also approved that if a State wants

to categorize backward classes into Backward and More

Backward it would not suffer from any legal infirmity.

A State may think it advisable to make a categorization

even among other backward classes so as to ensure that

the more backward among the backward classes

obtained the benefits intended for them. The 50% outer

limit for reservations held in Balaji case, it was explained

that while applying the ceiling limit of 50% every year of

46

recruitment should be taken as a unit but not the entire

strength of the cadre.

Creamy layer aspect has no relevance to Scheduled

Castes and Scheduled Tribes who are treated separately

although they also constitute a part of Backward classes

in the wider context. Considering the question as to the

justification of excluding advanced sections among the

backward classes for the purpose of Article 15(4) and

16(4) the majority judgment of the Supreme Court in Indra

Sawhney case evolved the principle that the “creamy

layer” among the backward classes must be kept out of

the protective umbrella of Article 15(4) and Article 16(4).

The reason for excluding the creamy layer according to

Justice Sawant in his separate but concurring judgment is

that clubbing them with the rest would be unconstitutional

since it would result in treating unequals equally. If the

creamy layer is not excluded the rest of the backward

classes would remain in “perpetual backwardness” since

the creamy layer would lap up all the special benefits to

the exclusion at the cost of the rest.

From a realistic angle Justice Sawant examined the

question as to how to ascertain the creamy layer. Merely

by being forward among the backwards is not the correct

test.

“The correct criteria for judging the forwardness of the

forwards among the backward classes is to measure their

47

capacity not in terms of the capacity of others in their

class, but in terms of the capacity of the members of the

forward classes44.”

The advancement achieved by the backward

classes must not only be with reference to quantitative

representation but it must be qualitative

“which means representation in the higher rungs of

administration as well, the competitive capacity should be

determined on the basis of the capacity to compete for

the higher level posts also. Such capacity will be acquired

only when the backward sections reach those levels or at

least near, those levels also45.”

Justice Jeevan Reddy who spoke for four judges

constituting the majority was of the view that

“if some of the members are far too advanced socially

(which in the context necessarily means economically and

may also mean educationally) the connecting thread

between them and the remaining class snaps…… the

basis of exclusion should not merely be economic unless

of course the economic advancement is so high that it

necessarily means social advancement”

While stating that the income of a person can be taken as

a measure of social advancement, Justice Jeevan Reddy

cautioned “the limit to be prescribed should not be such

as would result in taking away with one hand what was

given away with the other”. Recognising that certain

48

positions in life clearly reflect the social advancement

without any further enquiry he cited the example of the

members of All India Services.

The Government of India appointed an expert

committee to recommend the criteria for exclusion of

socially advanced persons/sections from the benefits of

reservation. The Expert Committee’s recommendation

was accepted by Government of India and a notification to

that effect was issued on 8.9.93. As per this notification,

broadly speaking sons and daughters of the following are

not eligible for the benefits:

(1) Those holding Constitutional posts –

i) Class I Officers

ii) Class II Officers

iii) Employees in Public Sector undertakings holding

position comparable to Class I and Class II.

iv) Armed Forces holding the Rank of Col. and above.

Professional classes like Doctors, Lawyer and

Chartered Accountants, Property owners

(Agricultural holdings – holdings in excess of 85%

of statutory ceiling.)

The gross annual income was fixed at Rupees one lakh

and above for falling within the ambit of creamy layer.

Subsequently this limit was raised to Rs.2.5 Lakhs in

2004 and in 2008 it was further raised to Rs.4.5 Lakhs.

49

The fixation of income for applying creamy layer test

should accord with the principle laid down by the majority

judgment in Indra Sawhney case. The social

advancement achieved by persons of backward classes

should not be measured with reference to the persons

belonging to Backward Classes but the comparison

should be with reference to the forward classes. The

creamy layer income limits fixed so far appear to be not in

tune with the criteria laid down in Indra Sawhney case.

Scheduled Caste / Scheduled Tribe vis a vis Other

Backward Classes- One noticeable factor in the

discussion concerning Backward Classes is the vide gulf

in the backwardness between Scheduled Castes,

Scheduled Tribes and other Backward Classes. So far as

Scheduled Castes are concerned due to historical

reasons it is admitted universally that they are at the

bottom. Scheduled Castes cannot be compared with

other castes for the obvious reason that the different

groups and sects among Dalits because of the practice of

untouchability have been included in the Schedule of

Government of India Act 1935 which has been followed in

the Constitution. Because of this inclusion they are called

Scheduled Caste and so their backwardness cannot be

50

judged with reference to other organized castes in Hindu

society. According to Justice Krishna Iyer:

“To confuse this backward most social composition with

castes is to commit a constitutional error, misled by a

compendious appellation. So that, to protect harijans is

not to prejudice any caste but to promote citizens

solidarity”.

The position of Harijans under the Constitution was

explained by the Learned Judge:

(1) “The Constitution itself demarcates Harijans from

others. (2) This is based on the stark backwardness of

this bottom layer of the community. (3) The

differentiation has been made to cover specifically the

area of appointments to posts under the state. (4) The

twin objects, blended into one, are the claims of

Harijans to be considered in such posts and the

maintenance of administrative efficiency. (5) The State

has been obligated to promote the economic interests

of Harijans and like Backward classes. Article 46 and

335 being a testament and Article 14 to 16 being the

tool- kit if one may put it that way. To blink at this

panchsheel is to be unjust to the Constitution46”.

A controversy has arisen sometime back as to

whether among the Dalits there could be valid

classification for the purposes of educational employment

under Articles 15(4) and 16(4) guided by the principle of

51

relative backwardness. Members of certain Scheduled

Castes felt that the relatively advanced castes among

them have been cornering all the benefits of reservation

both with regard to education and employment leaving the

real backwards perpetually in a state of backwardness.

In the State of A.P an attempt was made to classify

Scheduled Castes on the basis of their relative backwardness

but the Supreme Court quashed that in E.V.Chinnaiah Vs State

of A.P47. The classification was made by the State of A.P on the

basis of recommendations made by a Commission headed by

Justice Ramachandra Raju, a retired High Court Judge to

identify the Scheduled Castes that failed to secure the benefits

of reservation in admissions to educational colleges and

appointments in services. The Constitution Bench of the

Supreme Court held that all castes included in the presidential

order made under Article 341 form a class by themselves –

they are deemed to be one class. The Constitution Bench

followed the earlier precedent – N.M.Thomas case in which

Krishna Iyer J., held that Scheduled castes are not castes in the

Hindu fold, but they are:

“an amalgam of castes, races, groups, tribes, communities or

parts thereof found on investigation to be the lowliest and in

need of massive State aid and notified as such by the

President48”

The Supreme Court noticed the fact that the state has fulfilled

its Constitutional obligation by reserving seats in educational

52

institutions and public services in favour of Scheduled Castes

and Scheduled Tribes in proportion to their population, and:

“Having done so, it is not open to the State to sub-classify a

class already recognized by the Constitution and allot a portion

of the already reserved quota amongst the State-created

subclasses within the list of Schedule Castes49.”

The court declared that A.P State has no legislative

competence claimed by it under the Entry 41 of List II or Entry

25 of List III to subclassify Scheduled Castes which are

included in the Presidential order.

When it was pointed out to the court that sub

classification of backward classes was permitted in Indra

Sawhney case, the court declared that Scheduled Castes

constitute a homogeneous group and the same cannot be

regrouped or further classified by the State Legislature.

So far as other Backward Classes are concerned sub

classification was found to be permissible in Indra Sawhney

case. Justice Sawant in his separate but concurrent judgment

pointedly referred to this aspect. If there is substantial

difference in backwardness among the different Other

Backward Classes,

“….not only it is advisable but also imperative to make the sub

classification if all the backward classes are to gain equitable

benefit of the special provisions under the Constitution”.

Citing such an example of different Backward Classes

with different layers of backwardness Justice Sawant declared:

53

“In such circumstances, sub classification of the backward

classes into backward and more or most backward is not only

desirable but essential. However, for each of them a special

quota has to be prescribed as is done in the Karnataka

Government order50”.

Justice Jeevan Reddy who spoke for the majority in

the Indra Sawhney case while approvingly referring to the

earlier judgment of the Supreme Court in State of A.P Vs

Balaram51 which found that sub classification of other backward

classes was constitutionally valid, held that:

“…..a state may think it advisable to make a categorization

even among other backward classes so as to ensure that the

more backward among the backward classes obtain the

benefits intended for them”.

Reservations in Local Bodies:

The Constitution (Seventy Third Amendment) Act,1992 and the

Constitution (Seventy Fourth Amendment) Act, 1992 (popularly

called Rajiv Gandhi Acts) which came into force w.e.f 24.4.93

and 1.6.93 respectively brought about a radical change in

strengthening the local bodies – Panchayats and Municipalities-

by inserting Parts IX and Part IX A in the Constitution. For the

first time real power was devolved on local bodies. What is

important for our present discussion is that in proportion to their

population seats are reserved for Scheduled Castes and

Scheduled Tribes and among the reserved seats one third for

54

women belonging to those categories. (Articles 243 D (2) and

243 T (2). Overall representation for women to the minimum

extent of one third including the seats reserved for women of

Scheduled Castes and Scheduled Tribes in every local body is

ensured. The States are empowered by legislation to provide

reservation in favour of backward class of citizens. This was

undoubtedly a great step in the realisation of social justice for

the backward communities who otherwise were not in a position

to wield effective political power in Panchayats and

Municipalities.

Both the above Constitutional amendments came to be

challenged in the Supreme Court in K.Krishnamurthy & Ors.Vs

Union of India& Anr52. Very forceful arguments were advanced

in the Supreme Court on behalf of the Petitioners contending

that social and economic backwardness is not suggestive of

political backwardness and most of the other backward classes

groups are already well represented in the political arena and

needed no protection. The Constitution Bench which decided

the batch of Writ Petitions speaking through Chief Justice

Balakrishnan rejected all the contentions. The reasoning of the

court is that:

“The overreaching scheme of Article 243D and 243T is to

ensure the fair representation of social diversity in the

composition of elected local bodies so as to contribute to the

empowerment of the traditionally weaker sections in the

society. The preferred means for pursuing this policy is the

55

reservations of seats and chairpersons positions in favour of

Scheduled Castes (SCs), Scheduled Tribes (STs), women and

backward class candidates53”

The attempt on the part of the Petitioners for excluding

persons belonging to creamy layer from enjoying the benefits of

political reservation did not succeed. Stating that the

reservations in local self Government are intended to directly

benefit the community as a whole, rather than just the elected

representatives the court concluded that

“it is for this very reason that there cannot be exclusion of the

creamy layer in the context of political reservation”.

Krishnamurthy case has created a very peculiar

situation so far as other backward classes are concerned. The

rationale for reservation both for Scheduled Caste, Scheduled

Tribe and other Backward Classes as stated by the court does

not make any difference:

“In the domain of political participation, there can be no

objective parameters to determine who is more likely to get

elected to representative institutions at any level. The choices

of voters are not guided by an objective assessment of a

candidate’s merit and efficiency. Instead they are shaped by

subjective factors such as the candidates’ ability to canvass

support, past service record, professed ideology and affiliations

to organised groups among others. In this context it is quite

possible that candidates belonging to the SC/ST/OBC

56

categories could demonstrate these subjective qualities and win

elections against candidates from the relatively better- off

groups. However such a scenario cannot be presumed in all

circumstances. It is quite conceivable that in some localised

settings, backwardness in the social and economic sense can

also act as a barrier to effective political participation and

representation. When it comes to creating a level playing field

for the purpose of elections to local bodies, backwardness in

the social and economic sense can indeed be one of the criteria

for conferring reservation benefits54.”

When the court treated all the three categories Scheduled

Castes and Scheduled Tribes and other Backward Classes on

the same footing for justifying reservation, there appears to be

no valid reason for judicial invention of a new ground to treat

Other Backward Classes as a separate category thereby

creating unjustified and unreasonable difficulties for the State.

The argument of the Petitioner’s counsel that disadvantages

which restrict access to education and employment cannot be

readily equated with disadvantages in the realm of political

representation was partially accepted by the court.

Consequently the inference drawn was that backwardness in

social and economic sense “does not necessarily imply political

backwardness”.

In the next paragraph the court accepted “when it comes

to creating a level playing field for the purpose of elections to

local bodies backwardness in the social and economic sense

57

can indeed be one of the criteria for conferring reservation

benefits”.

The above reasoning fully applies to all the three

categories Scheduled Castes , Scheduled Tribes and Other

Backward Classes which the court treated as one unit in para

54 as already extracted supra. But rather paradoxically the

court drew the conclusions i and iii (which are extracted below)

laying down that separate criteria have to be evolved for the

purpose of ascertaining the political backwardness of other

backward classes. Conclusions I and III are as follows:

“(i) The nature and purpose of reservations in the context of

local self government is considerably different from that of

higher education and public employment. In this sense, Article

243 D and Article 243-T form a distinct and independent

constitutional basis for affirmative action and the principles that

have been evolved in relation to the reservation policies

enabled by Articles 15(4) and 16(4) cannot be readily applied in

the context of local self government. Even when made, they

need not be for a period corresponding to the period of

reservation for the purposes of Articles 15(4) and 16 (4), but

can be much shorter.

(iii) We are not in a position to examine the claims about

overbreadth in the quantum of reservations provided for OBCs

under the impugned State legislations since there is no

contemporaneous empirical data. The onus is on the executive

to conduct a rigorous investigation into the patterns of

58

backwardness that act as barriers to political participation which

are indeed quite different from the patterns of disadvantages in

the matter of access to education and employment. As we have

considered and decided only the constitutional validity of Article

243-D(6) and 243-T(6), it will be open to the Petitioners or any

aggrieved party to challenge any State legislation enacted in

pursuance of the said constitutional provisions before the High

Court. We are of the view that the identification of “backward

classes” under Article 243-D (6) and 243-T(6) should be distinct

from the identification of SEBCs for the purpose of Article 15(4)

and that of backward classes for the purpose of Article 16(4)55.”

Other than social and educational backwardness it

is difficult to conceive of any other factor for ascertaining

backwardness for the purpose of providing political reservation.

If the castes and tribes found in the Presidential orders issued

under Articles 341 and 342 hold good for political reservation of

Scheduled Castes and Scheduled Tribes in local bodies (as the

same was not disturbed by the Supreme Court), it is very

difficult to understand how a separate test needs to be evolved

in respect of other backward classes.

It is practically not possible to prepare a new list of backward

classes exclusively for the purpose of political reservation at the

local bodies level. The term backward classes must be

understood in the context of what is laid down in Article 340(1)

and that is the intention of the Founding Fathers of the

Constitution. There cannot be a backward class in this country

59

which is free from social and educational backwardness. It is

the advancement in social and educational fields which enables

people to contest effectively in the elections. If any caste

happens to win overwhelming number of seats both from the

reserved as well as non reserved categories, the situation calls

for excluding that caste from the list of OBCs. That would be a

matter for individual inquiry as and when such a situation

surfaces.

As a consequence of the present judgment, it would be difficult

to conduct elections to local local bodies maintaining

reservation for backward classes. The situation renders the

Seventy Third and Seventy Fourth Amendments to the

Constitution ineffective since the judgment directs preparation

of separate lists of OBCs under Article 243-D(6) and 243-T(6)

distinct from the one prepared for Article 15(4) and 16(4) of the

Constitution of India.

When the argument of the Petitioners questioning political

reservation was rejected on the ground that such a reservation

in local bodies is intended to empower the community as a

whole i.e. the community to which the elected representatives

belong to, there appears to be no valid reason for drawing a

line between Scheduled Castes and Scheduled Tribes on the

one hand and the other backward classes on the other.

60

Other Aspects of Socio Economic Justice:

The gamut of social justice extends to protective

measures in favour of women, children, workers, industrial

agrarian and other sectors, small farmers and minorities

besides religious reforms limited to secular activities. Each one

of these is fit to be a separate topic and so I do not propose to

deal with them except to refer to a few decisions touching upon

some of these aspects.

In Crown Aluminium Works Vs The Workmen56, one of the

questions that frequently raised by industrialists that when

economic condition of the industry does not justify payment of

bare minimum wages can it still be compelled to pay such

wages which will cause its ruination, came up for consideration.

Discussing this aspect Gajendragadkar J. (as he then was)

speaking for the Constitution Bench in clear terms declared :

“No industry has a right to exist unless it is able to pay its

workmen atleast a bare minimum wage. It is quite likely that in

under developed countries, where employment prevails on a

very large scale, unorganised labour may be available on

starvation wages, but the employment of labour on starvation

wages cannot be encouraged or favoured in a modern

democratic welfare state. If an employer cannot maintain his

enterprise without cutting down the wages of his employees

below even a bare subsistence or minimum wage, he would

have no right to conduct his enterprise on such terms57.”

61

In the context of the right of women to maternity benefits

flowing from the Maternity Benefit Act, 1961 enacted pursuant

to Articles 38 ,39,42 and 43 of the Directive Principles of the

Constitution, the Supreme Court speaking through Saghir

Ahmed J. in Municipal Corporation of Delhi Vs Female Workers

(Muster Roll) &Ors.58 held:

“A just social order can be achieved only when inequalities are

obliterated and everyone is provided what is legally due.

Women who constitute almost half of the segment of our

society have to be honoured and treated with dignity at places

where they work to earn their livelihood. Whatever be the

nature of their duties, their avocation and the place where they

work, they must be provided all the facilities to which they are

entitled. To become a mother is the most natural phenomenon

in the life of a woman. Whatever is needed to facilitate the birth

of child to a woman who is in service, the employer has to be

considerate and sympathetic towards her and must realise the

physical difficulties which a working woman would face in

performing her duties at the workplace while carrying a baby in

the womb or while rearing up the child after birth. The Maternity

Benefit Act, 1961 aims to provide all these facilities to a working

woman in a dignified manner so that she may overcome the

state of motherhood honourably, peacefully, undeterred by the

fear of being victimised for forced absence during the pre or

post-natal period59.”

62

The court also referred to the Universal Declaration of

Human Rights and the Convention on the elimination of all

forms of discrimination against women.

The concept of political reservation cannot be accepted

in a narrow sense thereby implying that the electorate in its

entirety must consist of persons belonging to reserved

categories. The Haryana Municipal Act adopted the mandate

contained in Part IX A of the Constitution. The question arose in

Bihari Lal Rada Vs Anil Jain and Ors60 whether a person

belonging to a backward class having won the seat as a

Municipal Councillor could contest for the post of President, not

reserved for any category? A very seemingly attractive

argument was advanced namely, as other backward classes

candidates are eligible to contest for reserved seats for which

persons belonging to general category are excluded so also

candidates belonging to reserved categories should be barred

from seeking election to non reserved seats/posts. The court

following the precedent in Kasambhai F.Ganchi Vs Chndubhai

D.Rajput and Ors61 declared that:

“Obviously there cannot be any such reservation of seats in

municipalities nor to the office of Chairperson in favour of

candidates belonging to general category. There is no separate

category like general category. The expression “belonging to

the general category” wherever employed means the seats or

offices earmarked for persons belonging to all categories

irrespective of their caste, class or community or tribe. The

63

unreserved seats euphemistically described as general

category seats are open seats available for all candidates who

are otherwise qualified to contest to that office”

The precedent followed i.e Kasambhai case related to the claim

of a person belonging to a backward class but elected from a

general seat and stood for election for the post of President

which was reserved for a backward class candidate Upholding

his right the court held:

“When the idea is to promote the weaker sections of the

society, and to improve their lot, it would be a contradiction in

terms if members belonging to that section are debarred from

standing to the office of the president because such a

candidate is popular enough to get elected from a general

constituency. It is a fundamental principle of democratic

election that a person who is more popular is elected, popularity

being measured by the number of votes which the person gets.

The language of various provisions do not in any way suggest,

expressly or by necessary implication, that even though a

person who belongs to a reserved category and is popular

enough to get elected from a general constituency should be

barred from contesting the election of the President when that

office is to be filled only by a reserved category person62 ”

Several legislative measures were adopted by the State

to fulfil the objective of social justice incorporated in the

preamble and other provisions of the Constitution. I have

already referred to reservations in favour of Scheduled Castes,

64

Scheduled Tribes and other Backward Classes which form part

of social justice. In order to usher in economic democracy as

part of rendering economic justice laws touching upon agrarian

reforms, minimum wages, state monopoly, nationalisation of

certain trades and industrial control of certain commodities,

control of money lending, debt relief etc have been enacted.

Any discussion in respect of any one of these topics is likely to

be voluminous and so I shall briefly refer as to how the courts

have resolved the questions that surfaced posing challenge to

the laws in that behalf since all these laws aimed at the

collective interest of the society but perceived to be in breach of

guaranteed individual rights. Articles 19(1) (f) and 31 dealing

with the right to property have been repealed by the

Constitution Forty Fourth Amendment Act 1978 w.e.f 20.6.79,

and so I am omitting reference to the entire case law as well as

how the concept of land reforms was viewed differently by the

Members of the Constituent Assembly.

Persons subjected to disabilities come under the

broad protective umbrella of social justice. The Parliament

enacted the “Persons with Disabilities Equal Opportunities

(Protection of Rights and Full Participation) Act,1995 which

came into force w.e.f.7.2.96. It contemplated, by Section 43,

schemes for preferential allotment of land in favour of persons

with disabilities at concessional rates for constructing houses

setting up businesses, recreation centres, establishment of

schools, research centres and factories. As the schemes have

65

not been formulated by several State Governments, the

Supreme Court in Prajwala Vs Union of India and Ors63 issued

directions for implementation of the Act leaving it to the

discretion of State Government and local authorities as to the

limits of percentage of reservations.

The high point of socialism was reached

when the Supreme Court ruled that the workers of a company

have a right to be heard in the determination of the question

whether the company should continue to run or be shut down

on the orders of the court. The concept of corporate

responsibility was judicially examined and a new interpretation

was given by Justice P.N.Bhagwati (as he then was) speaking

for the majority in National textile Workers Union Vs

P.R.Ramakrishnan & Ors64.

“ The Constitutional mandate is therefore clear and undoubted

that the management of the enterprise should not be left

entirely in the hands of the suppliers of capital but the workers

should also be entitled to participate in it, because in a socialist

pattern of society, the enterprise which is a centre of economic

power should be controlled not only by capital but also by

labour. It is therefore idle to contend thirty years after coming

into force of the Constitution and particularly after the

introduction of Article 43 A in the Constitution, that the workers

should have no voice in the determination of the question

whether the enterprise should continue to run or be shut down

under an order of the court”.

66

Globalisation:

Economic liberalism and socio economic justice do not go

together in developing countries especially in a country like

ours with in built social inequalities. With India signing the WTO

agreement in 1955 serious issues have surfaced. The WTO

regime covers Intellectual Property Rights as well as services.

India being a signatory to WTO agreement, it is under an

obligation to restructure the legal system so as to accord with

the WTO regime. Article 16(4) of the WTO agreement

mandates each Member to ensure that its laws, regulations and

administrative procedures are in conformity with its obligations

under the WTO. Criticism is mounting in our country that

globalization in the form of economic liberalism obliterating

barriers between countries in matters relating to trade

commerce and services, is resulting in huge acquisition of

wealth by individuals and business houses without caring for

the social and economic development of the marginalized and

deprived sections of the society. According to the eminent

economist Amartya Sen if the present economic trend

continues in the country, half of India would resemble

California, while the other half would be reduced to sub-

sahara65. The I.T sector is growing @35-40%. Only 15% of the

country’s population is benefitting from the fruits of accelerated

GDP growth because of globalization. The Special Economic

Zones, it has been noticed are really not contributing to the

prosperity of the small peasants. Their lands have been

67

acquired for setting up Special Economic Zones by throwing

them out of their traditional occupations and reducing them to

manual workers in the Special Economic Zones.

“The new facilities that come up are unlikely to absorb even

5% of the farm workers who are deprived of their occupational

pursuit66”

The picture portrayed by Shri Ashok Mitra is

“The top decile of Indian society is experiencing

unprecedented prosperity. It will import more and more of

consumption goods from overseas, thereby denying the poor

the privilege of producing these goods domestically. The poor

in the countryside will continue to starve and die67”.

The restructuring of Indian laws to accord with WTO

regime poses very complicated questions. Federalism is a

basic feature of the Indian Constitution as ruled by the Supreme

Court in Keshavanand Bharati case: socio economic justice is

one of the basic features. Many laws within the ambit of the

legislative powers of the States under List II of Schedule VII of

the Constitution need modification if WTO regime is to be

implemented fully. Whether the Union Parliament can make

laws in this regard violating the Constitutional scheme as to the

distribution of legislative power between the Centre and the

States?.

Opportunities in Public services are dwindling because of

economic liberalism. The chances of the Backward Classes

(including Scheduled Castes and Scheduled Tribes) for a fair

68

share of jobs in the public sector have been reduced to a great

extent as the State has begun to withdraw from economic

activities leaving the field to the private sector. The lot of the

Backward Classes will not improve unless reservation policy is

introduced in the Private Sector. If a private individual starts a

business or enterprise with his own funds without in any

manner seeking financial help from the state, there cannot be

any legal justification to insist that he should recruit staff on the

basis of reservation policy. But where business and industrial

units are started with the financial aid of the Government or

Public Financial Institutions, reservation policy must be

implemented effectively. It is a necessity to set right the

imbalance of the Indian society in the social and economic

spheres because of centuries of social inequality with its

necessary concomitant of social discrimination resulting in

deprivation.

The American example may be briefly noticed.

Whenever the finances of the State are involved a small

percentage of reservation is statutorily provided. The test for

determining the constitutionality of such acts in the United

States is the compelling state necessity, the burden of which is

cast upon the state. But under our Constitution there are

specific provisions enjoining the State to implement socio

economic justice especially for the backward classes. Indian

legislation or Governmental actions cannot be judged on the

touchstone of compelling necessity of the State (Ashok Kumar

69

Thakur Case) as was done by the U.S.Supreme Court in

Fullilove Vs Klutznick68 and the, Regents of the University of

California Vs Allan Bakke69. The Civil Rights Act, 1964 enacted

by the U.S Congress seeks to lift the status of the blacks by

affirmative actions and the U.S. Supreme Court interpreted that

the Congress by enacting the Civil Rights Act intended to

“prohibit not only patent discrimination but also all practices

which are fair in form but discriminatory in operation” (Griggs Vs

Duke Power Company70.).

Our Constitution incorporates specific mandate to the

State to take care of Backward Classes by providing

reservations in law making bodies, educational institutions and

public services.

Failed Attempt to subvert the Constitution:

The commitment to socio-economic justice and its actual

implementation depend upon the policies enunciated by

political parties when they fight election to capture power.

Qualification to exercise franchise is citizenship of the Country

and not being subjected to disqualification laid down in the

Constitution or any other law made by Parliament or any State

Legislature. Every such citizen “shall be entitled to be

registered as a voter at any such election”. Article 325 speaks

of electoral roll for every territorial constituency for election to

the House of the People or Houses of the Legislature of a

State. Article 81(1)(a) and 170(1) mandate that the members of

70

House of the People and State Legislative Assemblies

respectively shall be chosen by direct elections. Article 326 of

the Constitution speaks of elections to the House of the People

and the Legislative Assemblies of States on the basis of adults

suffrages. Article 326 reads as follows:-

“326. Election of the House of the People and to the

Legislative Assemblies of States to be on the basis of adult

suffrage.- The elections to the House of the People and to

the Legislative Assembly of every State shall be on the

basis of adult suffrage; that is to say, every person who is a

citizen of India and who is not less than eighteen years of

age on such date as may be fixed in that behalf by or under

any law made by the appropriate Legislature and is not

otherwise disqualified under this Constitution or any law

made by the appropriate Legislature on the ground of non-

residence, unsoundness of mind, crime or corrupt or illegal

practice, shall be entitled to be registered as a voter any

such election”.

This Article is part of the original Constitution and the only

change brought about was with regard to the minimum age to

exercise franchise; earlier it was 21 years which was reduced to

18 years by The Constitution (Sixtyfirst Amendment) Act, 1986.

The first limb of Article 326 mandates elections to the House of

the People and Legislative Assemblies of the States on the

basis of adult suffrage. It necessarily implies that elections

71

must be held to the House of the People and the Legislative

Assemblies on the basis of adult franchise. Keshavanand

Bharathi’s case mentions illustratively what constitute basic

features of the Constitution: Republican and Democratic Forms

of Government are among the basic features of the

Constitution. The Founding Fathers visualised a democratic set

up with law making bodies consisting of members elected by

the people. Holding of elections and adult suffrage are

inseperably linked. Without elections there can be no

democracy. Any tinkering with this would amount to violating

one of the unalterable basic structures of the Constitution.

In the face of the above constitutional requirements

needed to safeguard effectively the functioning of democracy in

the Country, an attempt was made way back in 2000 when the

NDA Government was in power to tinker with the electoral

process. A Commission headed by a former Chief Justice of

India Justice M.N.Venkatachaliah, was appointed by the Union

Government to review the working of the Constitution. This

Commission was set up by an executive order without any

Parliamentary sanction. There was no political consensus

either on the terms of reference or composition of the members

of the Commission. The Indian National Congress, the oldest

and the largest political party in the Country and the main

opposition party in the Rajya Sabha and Lok Sabha boycotted

the Commission refusing to take cognizance of its existence. A

gigantic exercise like review of the Constitution, should be

72

undertaken in consultation with all political parties since the

Constitution making or its review must necessarily be non-

partisan in nature keeping in view no consideration except the

interest of the Nation as a whole. The Review Commission

has set up study groups to submit papers for consideration by

the Commission. The paper submitted by the study group on

Electoral Reforms shocks the conscience of any votary of

democracy.

“The paper raises the fundamental question of the high cost

of elections and legitimate sources of funding political

activity and election campaigns. In this connection the need

for drastically bringing down the costs and the Gandhian

model of decentralization and a bottom-up instead of the

present top down approach are also mentioned71”.

The suggested options as stated by the study group

indicate their preference to dispense with direct elections to the

State Assemblies and Lok Sabha and instead opt for elections

at the grassroots level viz. Panchayats. Instead of saying it so

openly the study group attributed the idea to Mahatma Gandhi

and to “many scholars” without specifically quoting who they

are and when they expressed the views. In para 6.3 the study

group said:-

“Based on the Indian ethos, Gandhi had advocated a low-

expense election system linked with watchdog councils and

separate elected chief executives at each local level. He

proposed a highly democratic and, what is more important, a

73

highly accountable system. More thought out and more in

keeping with the evolution of political culture in our country,

many scholars have in recent years adapted these thoughts

in their work and advocated a system of direct elections only

at the grassroots of the Indian democracy. They propose

that without in anyway interfering with the basic structure or

features of the Constitution and while fully continuing the

parliamentary system, some reforms be brought in the

electoral system. Direct elections should be held on the

basis of adult franchise at the level of Panchayats and other

local bodies. Panchayats and other local bodies could elect

the zila parishads and they could together elect the State

legislature. These three could elect the Parliament and in

the last analysis the four of these could elect the President.

The Prime Minister and the Chief Ministers could be elected

by the Parliament and the State Legislatures concerned.

The President, the Prime Minister and the Chief Ministers in

order to be elected should each necessarily secure no less

than 50% + 1 of the votes cast. Once elected, the Prime

Minister or a Chief Minister should be removable only by a

constructive vote of no-confidence.

The fact that the directly elected representatives are all at

the grassroots level where they are in contact with their

electors on a daily basis, would mean that their

accountability to the people will always be high. Corruption

will not get the kind of boost and inducement that it gets

74

presently because of an unaccountable remote

representative doing what he pleases”.

The study group clearly indicated that it is in favour of the

above model by stating in para 6.4 that:-

“6.4. The representatives elected at the grassroots level

will also have to win on a 50% + 1 vote principle so that

their appeal is more universal than parochial. They would

then be truly legitimate representatives of their people. In

the alternative, at the lowest tier double-member or multiple

member constituencies could be considered. Local

elections do not entail heavy costs. The cost to political

parties of indirect State and national elections will be low.

Since the national and State governments will handle only

higher level infrastructure and coordination, indirect

elections backed by party primaries will facilitate

emergence of the best leadership. The ills in the present

“first-past-the-post” system will be eliminated because local

governments will handle all social issues and State and

national governments shall be accountable to local

governments as advocated by Gandhi who will have

elected them. This will nurture culture, education and

values and gradually eliminate social discords. Also, this

election process, it is claimed, has the greatest potential to

bring public service spirited and sacrifice oriented people to

the fore72”.

75

The then President of India late Shri K.R.Narayanan came out

very strongly against this indirect subversion of the

Constitution. He declared openly that India should not lean

towards any guided democracy introduced by Field Marshal

Ayub Khan in Pakisthan. Thereafter, the Commission

distanced itself from the study group adventure and

concluded:

“The Commission carefully considered the strong

presentations and representations made in support of the

model but, as the consultation paper itself had anticipated

and pointed out, in the present situation, the model is not

feasible73”.

Was not the report of the study group seen by Chief Justice

Venkatachaliah before it was circulated for eliciting public

opinion ? Whether he had seen it or not, either way it is to be

regretted that half a century after the successful working of

the Indian Constitution some people in the name of review of

the Constitution attempted to destroy its very foundation –

elections based on adult suffrage.

Adult franchise is a most potent weapon in the hands of

the Backward Classes to fight for their advancement – social,

educational and economic. What otherwise would have been

calamitous to Indian Democracy was averted. This failed

attempt saved the marginalized sections of the Indian society

– SCs/STs/OBCs - from entrapment into serfdom. What

could be the reasons for the silence of the legal fraternity,

76

social activists and political parties (other than Congress) to

condemn such a blatant attempt to subvert the Constitution ?

Epilogue:

Social justice which is an integral part of our Constitution is

slowly getting eclipsed because of privatization and

globalization. Almost seventy percent of the wealth in the

country is concentrated in the hands of twenty percent of the

people and the rest of them are struggling for survival. In

many areas tribals are being uprooted as their habitations are

acquired for industrialization. Big industrial enterprises are

trying to take over the lands of the tribals thereby causing

social convulsions. Naxalism is on the increase. When people

are subjected to deprivation their fight to improve their lot

sometimes slides into unconstitutional methods. Development

without comprehensive growth of all sections endangers

social stability. Enormous wealth and abject poverty are sworn

enemies: both cannot co exist.

One of the methods by which social equality can be

brought about is by democratization of Hindu religion: when

eighty percent of the population in the country are Hindus the

glaring scene of social inequality springs from Hinduism.

Certain castes claiming that by virtue of their institutionalized

social superiority they can always lay down the precepts for

others to follow and that by birth only members of certain

castes alone are entitled to priesthood must change. No

77

religion in the world except Hinduism adopts the practice of

conferring priesthood on certain castes alone. This is social

injustice calling for immediate intervention by the State under

the Directive Principle of Article 46. Legislation has already

intervened and changed many practices of Hinduism as part

of social reform sanctioned by Article 25 (2) (b) of the

Constitution. The recent order of the Tamil Nadu Government

providing for reservation in the posts of temple priests is a

laudable step in the right direction. As it is under challenge in

the Supreme Court, I do not want to comment any further. But

I must mention that atleast in two cases the Supreme Court

said in order to be a priest there is no requirement that one

should be a Brahmin by birth.

Seshammal Vs. State of Tamil Nadu and N.Adityan Vs.

Travancore Dewasom Board74

A common criticism we are hearing is that caste

based reservations are dividing the society and therefore

there should be rethinking. Abolition of caste is put forward as

one of the remedies. Unless the social structure is changed it

is impossible to abolish the caste. The Social structure will

change only when the social and economic conditions of the

Backward Classes including Scheduled Castes and

Scheduled Tribes are improved resulting in their upward

mobility equalling that of other advanced sections. This alone

can bring about social equality evidencing social intercourse

78

among all sections and groups. Unless there is demonstrable

evidence that social inequalities are obliterated, abolition of

reservation would be meaningless. How long the reservations

should continue? Where ever I go I face this question.The

answer is as long as social inequalities exist reservations

must continue. I may recall what Dr. Ambedkar said in the

Constituent Assembly

“I am prepared to give far longer time. But all those who have

spoken about the reservations to the Scheduled Castes or to

the Scheduled Tribes have been so meticulous that the thing

should end by ten years. All I want to say to them, in the

words of Edmund Bruke is “Large empires and small minds go

ill together75.”

Delivering the Bharat Ratna Dr. B.R.Ambedkar Memorial

Lecture as part of the Chancellor’s Lecture series in 1997 at

the Nagpur University I advocated very strongly that

continuance of affirmative action is inextricably linked with

social integration. I said:

“Unless the victim groups who suffered the first order

discrimination in the past because of the inbuilt social

inequalities of the Hindu society, reach the level of other

advanced classes, social integration becomes a distant

dream. The realisation of that dream is possible only by

affirmative action. The end of affirmative action is linked with

the educational and social progress of the Backward Classes.

Quicker the progress, the shorter would be the duration of

79

affirmative action. Social cohesion and societal integration are

possible only when there is equality of opportunities for all and

opportunities are available equally for every one to compete

for any position especially scarce positions. Until that stage is

reached, reservations by way of affirmative action and reverse

discrimination (implying meeting out unequal treatment for

remedying inequalities but not infliction of deliberate hostile

treatment as present punishment for past injustice), I think,

are inevitable.

The validity of affirmative action does not depend upon the

grievances made out by persons belonging to advanced

sections who secured lower ratings amongst persons

belonging to their class but secured higher ratings vis-a-vis

the Backward Classes. This grievance is similar to the one

voiced by Bakke in the United States. This criticism was

admirably demolished by Prof. Dworkin ;

"..........no one in our society should suffer because he is a

member of a group thought less worthy of respect as a group

than other groups. We have different aspects of that principle

in mind when we say that individuals should be judged on

merit, they should be judged as individuals and they should

not suffer disadvantages because of their race. In that

fundamental principle is the spirit of the goal that

affirmative action is intended to serve. The principle furnishes

no support for those who find, as Bakke does, that their own

interests conflict with that goal."

80

[See : A Matter of Principle - Ronald Dworkin -p. 302.]

Social diversity must be reflected in the set up of all

instrumentalities of the State and all institutions controlled or

funded by the State. Real equality is possible only when past

victims of social disabilities are able to claim on their own

higher positions enjoying fair equality of opportunity without any

demand for preferential treatment. For this the necessary pre-

condition is social integration which in turn depends upon all

social groups achieving more or less uniform development. The

transience of affirmative action depends upon the duration of

reaching this goal. This is the message of THOMAS AND

MANDAL decisions76”.

The social climate has not changed: I still adhere to my

views.

1 C.K.Allen: Aspects of justice, 1958 Edition page 80.

2 David Miller : Social Justice, 1976 Edition, page 317

3 Shankarlinga Nadar Vs Rajarajeswari Dorai, 35 Indian Appeals, 176.

4 B.Shiva Rao: The Framing of Indian Constitution – Vol.I, page 342

5 Constituent Assembly Debates, Volume –I, Page 62

6 The Constitution (Forty Second Amendment) Act, 1976 had formally filled this gap by

including the words “Socialist, Secular” in the first sentence of the preamble. Our

Supreme Court explained:

“The expression ‘socialist’ was intentionally introduced in the preamble by the

Constitution (Forty Second Amendment) Act, 1976 with the principal aim of eliminating

inequality in income and status and standards of life. The emphasis on economic equality

in our socialist welfare society has to pervade all interpretations made in the context of

any challenge based on hostile discrimination6”.

81

The occasion was the examination of the constitutionality of a taxation measure imposing

sales tax on cooked food sold to the affluent in the luxury hotels while exempting the

same when sold in non luxury eating places.

7 Constituent Assembly Debates, Volume –I, Page 100

8 Constituent Assembly Debates, Volume –I, Page 144-145

9 Constituent Assembly Debates, Volume –I, Page 316

10

Constituent Assembly Debates, Volume –II, Page 4

11

Constituent Assembly Debates, Volume –V, Page 130

12

Constituent Assembly Debates, Volume –X, Page 439

13

Constituent Assembly Debates, Volume –X Page 442

14

India’s Constitution in the making by Sir B.N.Rau, Pages 250-251

15

Constituent Assembly Debates, Volume –VII, Page 494

16

Constituent Assembly Debates, Volume –VII, Page 41

17

Constituent Assembly Debates, Volume –VII, Page 476

18

2010 (2) SCC 44 19

Random Reflections on Law and allied matters : By Justice M.N.Rao, High Court of A.P 20

1977 (4) SCC 471 21

AIR 1965 SC 1557 22

AIR 1969 SC 597 23

AIR 1969 SC 101 24

AIR 1959 SC 1381 25

AIR 1972 SC 1840 26

Constituent Assembly Debates, Volume –VII, Page 696-697

27

1951 SCR 525 28

AIR 1951 SC 229 292929

2008 (6) SCC 1 30

2008 (6) SCC 1 at page 446 31

AIR 1962 SC 36 32

2008 (9) SCC 242 33

2008 (9) SCC 242 at 271 34

1996 (6) SCC 580 35

2000 (1) SCC 430 36

AIR 1964 SC 179 37

AIR 1976 SC 490 38

AIR 1963 SC 649 39

AIR 1972 SC 1373 40

AIR 1973 SC 930 41

AIR 1993 SC 477 / 1992 Supp.(3) SCC 215 42

Cited supra 43

1992 Supp.(3) SCC 215 at 726 44

1992 Supp.(3) SCC 215 at 554 45

1992 Supp.(3) SCC 215 at 554

46

State of Kerala Vs N.M.Thomas/ AIR 1976 SC 490 47

2005 (1) SCC 394 48

2005 (1) SCC 412 49

2005 (1) SCC 414 50

1992 Supp.(3) SCC 215 at 556 51

1972 (1) SCC 660 52

2010 (7) SCC 202 53

2010 (7) SCC 202 at 211 para 8 54

2010 (7) SCC 202 at 225 para 54

82

55

2010 (7) SCC 202 at 233 para 82 56

AIR 1958 SC 30 57

AIR 1958 SC 30 at para 10 58

2000 (3) SCC 224 59

2000 (3) SCC 224 at 236

60

2009 (4) SCC 1

61

1998 (1) SCC 285 62

1998 (1) SCC 285 at 293

63

2009 (4) SCC 798 64

1983 (1) SCC 228 at 249 65

The Nowhere Nation by Ashok Mitra at Pg.59 66

Ashok Mitra Op cited at Pg.83

67

Ashok Mitra Op cited at Pg.84

68

448 U.S.448 69

438 U.S.286 70

401 U.S. 424 (1971) 71

Review of the Working of the Constitution – Report of the National Commission to Review the

Working of the Constitution Vol. II page 481. 72

Report of the National Commission to Review the Working of the Constitution – Vol. Page 490

73 Report of the National Commission to Review the Working of the Constitution Vo.I page 124.

74 1972 (2) SCC11 and 2002 (8) SCC106 at 123

75 Constituent Assembly Debates, Vol.IX,Pg.697

76 Reflections on Law and Society by Justice M.N.Rao.