A
case for caste census
ERA
SEZHIYAN
As the
Supreme Court has ruled that conducting a caste-based census is against the
law, the people would like
to know what steps the Prime Minister will take to sustain the policies of
reservation. By ERA SEZHIYAN
IN its
judgment of November 7, 2014, the Supreme Court set aside two orders of the
Madras High Court that had directed the Centre to conduct a
caste-based census. In the judgment of October 2008, the Madras High Court
observed that a caste-based census would increase the
percentage of reservation in favour of the weaker sections. In May 2010, the
Madras High Court reiterated that decision. The Supreme
Court held that such decisions of the High Court interfered in the government’s
domain of policymaking. In 1951,
there were two cases before the High Court of Madras involving reservation for
backward classes in public services and in educational
institutions: Champakam Dorairajan vs State of Madras and Venkataraman
vs State of Madras. The Madras High Court had struck
down the Communal Government Order passed by the Justice Party government in
Madras Presidency in 1921 that had provided for
caste-based reservation. In the appeal, the Supreme Court came to the
conclusion that these two reservations were
against the
law. To validate the policy of reservation, the Government of India took steps
to introduce a Bill in Parliament amending the
Constitution. Speaking on May 29, 1951, in Parliament on the report of the
Select Committee that was set up to look into the First
Amendment,
Prime Minister Jawaharlal Nehru said: “Now I don’t for an instant challenge the
right of the High Court of Madras, to give the
decision…. Nevertheless, while it is quite valid and we bow before the
decisions of the court, the fact remains that we are faced with
a situation for
which the present generation is not to blame. Therefore, some sort of special
provisions must be made. We have to do something for
the communities which are backward educationally, economically and in other
respects, if we wish to encourage them in
these
matters. We come up against the difficulty that, on the one hand, in our
Directive Principles of Policy we talk of removing inequalities,
of raising the people in every way, socially, educationally and economically,
of reducing the distances which separate the
groups or
classes of individuals from one another; on the other, we find ourselves
handicapped in this task by certain provisions in the Constitution.”
More blunt
and pointed was the speech of Law Minister B.R. Ambedkar. He said: “I have
carefully studied the judgments and with all respect to
the judges of the Supreme Court, I cannot help saying that I find this judgment
to be utterly unsatisfactory.” There were
several
points of order in the House from the members against disrespect to the higher
judiciary. Ambedkar contended: “There is no disparagement
of the learned judges at all. The judgment does not appear to be in consonance
with the articles of the Constitution.”
After furious
interruptions, Speaker G.V. Mavalankar tactfully brought peace to the House by
observing: “I was thinking whether what he [Ambedkar]
expressed was not capable of a different interpretation, viz. that the judgment
was unsatisfactory from the point of
view of what
the government proposed to do.” Then Ambedkar
proceeded on the legal aspects of the issue: “[I]t is really impossible to make
any reservation which would result in
excluding
somebody who has a caste.... it is one of the fundamental principles which I
believe is stated in Mulla’s last edition on the very first page that
there is no Hindu who has not a caste…. If you make reservation in favour of
what are called backward classes which is
nothing but a
collection of certain castes, those who are excluded are persons who belong to
certain castes.” (“Hindu Law” was a notable treatise
tracing the developments in the field of Hindu law edited by Dinshaw F. Mulla.
Its 21st edition was published in 2013. It is still
considered an
indispensable work for lawyers.)
The government’s Bill was considered
and passed by Parliament on June 1, 1951, and got the President’s assent the
following day, resulting in
the Constitution (First Amendment) Act, 1951; the date of its commencement was
June 18, 1951. This shows how earnest
Nehru and
Ambedkar, and Parliament in general, were in having the amendment passed to
safeguard the benefits of reservation for the backward
communities. In the Indra
Sawhney vs Union of India (AIR 2000 SC 498) case, on November 16, 1992, the
Supreme Court held that the total quantum of
reservation under Article 16(4) should not exceed 50 per cent. The issue came
up before the High Court of Madras which said that the
State government could continue with its reservation policy in the academic
year 1994-95 and that the quantum of
reservation
should be brought down to 50 per cent afterwards. 69 per cent
in Tamil Nadu
Tamil Nadu
has had a policy of reservation of seats in educational institutions and
appointments to various posts in the Public Services for Other
Backward Classes (OBCs), Scheduled Castes (S.Cs) and Scheduled Tribes (S.Ts)
from 1921. From time to time, the extent of reservation
has been increased in order to meet the needs of the majority of the people.
Consequently, in 1992, reservation in Tamil Nadu had
reached the level of 69 per cent: 18 per cent for S.Cs, 1 per cent for S.Ts and
50 per cent for OBCs. At the time,
Chief Minister Jayalalithaa and the Tamil Nadu Assembly were quite committed to
upholding the 69 per cent reservation. A special
session of the Tamil Nadu Assembly was held in November 1993 to resolve
unanimously that the Union government should make a
constitutional amendment to allow the continuation of the State’s reservation
policy.
At that
crucial time, P.V. Narasimha Rao was serving as India’s 10th Prime Minister
(1991-96). Politically, he was the first Prime Minister from
the non-Hindi-speaking south of India. In the 1991 general election, the
Congress contested in 487 constituencies and succeeded in
getting only 232 seats. Hence, the Congress led a minority government. Further,
Narasimha Rao himself was not a Member of
either House of Parliament. (He later contested a byelection and got mammoth
support.) Narasimha Rao, who preferred to be a
Chanakya, went through the ordeal so discreetly that none of the opposition
parties was prepared to topple his government. Once, when they
moved a no-confidence motion against the government, it was easily defeated
through the open distribution of bribes to some members.
When
Jayalalithaa needed the help of the Union government to protect Tamil Nadu’s 69
per cent reservation, Prime Minister Narasimha Rao
readily came forward to support her. The Union Home Minister consulted the
leaders of the major political parties, and
they conceded
that the Tamil Nadu government’s demand was justifiable. The Tamil Nadu
government got the Tamil Nadu Backward Classes,
Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational
Institutions and of Appointments or Posts in the
Services
Under the State) Bill, 1993, (Tamil Nadu Act No.45 of 1994) passed. On its part,
the Union government introduced in the Rajya Sabha on August 24, 1994, the Bill
for the 76th amendment to the Constitution,
which sought to amend the Ninth Schedule of the Constitution. On the same day,
the Rajya Sabha passed with formal amendments
the Constitution (Seventy-sixth Amendment) Act, 1994. The Bill as passed by the
Rajya Sabha was considered and passed by the
Lok Sabha on August 25. Tamil Nadu’s reservation policy has been well protected
by the Ninth Schedule. Article 341
of the Constitution states: “(1) The President may with respect to any State or
Union Territory, and where it is a State after
consultation
with the Governor thereof, by public notification, specify the castes, races or
tribes or parts of or groups within castes, races or
tribes which shall for the purposes of this Constitution be deemed to be
Scheduled Castes in relation to that State or Union
Territory, as
the case may be, (2) Parliament may by law include in or exclude from the list
of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or part of or group within any
caste, race or tribe, but save as aforesaid a
notification
issued under the said clause shall not be varied by any subsequent
notification.” Under this provision, the Union government
issued the Constitution (Scheduled Castes) Order, 1950, for all the States and
Union Territories of India. See the box for
the list of
castes given in the order for Tamil Nadu (Part XVI).
Further,
according to the 1950 order, the number of the castes in the S.Cs in the States
and the Union Territories were as follows: Andhra
Pradesh (59), Assam (16), Bihar (23), Gujarat (30), Haryana (37), Himachal
Pradesh (56), Jharkhand (22), Karnataka (101), Kerala (68),
Madhya Pradesh (47), Maharashtra (59), Manipur (seven), Meghalaya (16), Orissa
(93), Punjab (37), Rajasthan (59), Tamil Nadu
(76), Tripura (32), Uttar Pradesh (66), West Bengal (59), Mizoram (16),
Arunachal Pradesh (16), Goa (five), Chhattisgarh
(43) and
Uttaranchal (65). This works out to 1,108 S.Cs in the 25 States and Union Territories in India. Sometimes, a particular caste classified as
an S.C. in one State may not be acceptable as an S.C. in another State. This
variation occurs across districts and taluks
within States
themselves. The 61st
Round of the National Sample Survey Organisation (now Office), or NSSO, of the
Ministry of Statistics and Programme Implementation
(Consumer Expenditure, Employment-Unemployment Survey, July 2004 June 2005)
gave the religion-wise breakup of S.Cs:
Hinduism (22 per cent), Buddhism (90 per cent) and Christianity (9 per cent).
The high percentage of S.Cs in Buddhism may be
because Ambedkar embraced Buddhism on October 14, 1956, the Buddha’s 2,500th
birthday. His conversion persuaded a
large number
of S.Cs in Maharashtra to join Buddhism. The 61st Round also noted the
proportion of S.Ts in Hinduism (7 per cent), Christianity
(33 per cent) and Zoroastrianism (16 per cent). The recent
judgment of the Supreme Court held that the collection of data on castes,
through a census (or any other means), is against the law.
Unless this decision is revised by a higher Bench, the issue will be left to
the Union Cabinet to decide.
BJP’s
election promise
In its 2014
election manifesto, the Bharatiya Janata Party (BJP) gives several solemn
pledges, including the following. On page 11, in the paragraph
on “E-Governance: Easy, Efficient and Effective”, the manifesto states: “The
BJP believes that IT [information
technology]
is a great enabler for empowerment, equity and efficiency. The NDA [National
Democratic Alliance] government has made IT one of the
major thrust areas. India is the IT capital for the whole world.” Further along
on that page, under item 10, the manifesto
says: “We
will…. focus to bring S.C./S.T., OBCs, and other weaker sections of the society
within the ambit of IT-enabled development.” On page 15
under the caption “Poor and Marginalised—Bridge the Gap”, it says
categorically: “We will… facilitate partnership across all levels of
government, civil society, academic and financial institutions in the national
mission of poverty alleviation.” And on page
16, under the title “S.Cs, S.Ts, OBCs, and Other Weaker Sections—Social Justice
Empowerment”, it states: “The BJP is committed to
bridge the gap, following the principles of Smajik Nyay (social justice) and
Samajik Samrasata (social harmony). The social justice must be further
complemented with economic justice and political empowerment. Instead of
pursuing identity politics and tokenisms, we
will focus on empowering the deprived sections of society. Steps will be taken
to create an enabling ecosystem of equal opportunity—for
education, health and livelihood.”
The Supreme
Court has concluded that the conduct of a caste-based census is against the
law. As Ambedkar stated in Parliament in 1951 it was
not possible to make reservation excluding the caste of the beneficiary under
the policy of reservation hitherto followed.
The 1950
Government Order included the large number of castes within the community of S.Cs
and S.Ts. While bowing to the judgment of
the Supreme Court, Nehru took early steps through a constitutional amendment to
continue with the policy of reservation.
Now the
Indian public, especially the S.Cs, S.Ts, OBCs and other weaker sections, would
like to know what political and constitutional steps Prime
Minister Narendra Modi will take to sustain the policies of reservation. The
BJP’s manifesto, in the last paragraph (page 6)
of the
preface, under the title “Credibility Crisis”, says that “the biggest challenge
that faces India is to restore the credibility of, and trust in the
Union Government”. It is left to the BJP, its leaders and members of the
government to “restore” the credibility of and trust in the
Union government.
Era
Sezhiyan is a former Rajya Sabha member.
(Published in Frontline.in)
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