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I.
Elections in India witnessed several Harijans being shot, beaten and forcibly prevented from
voting by higher caste groups. Hypocrisy is an English vice and that is how the Indians learnt
it. The use of Harijans to describe untouchables is a prime example. Harijans means Children
of God which makes people feel better about the way untouchables are treated by their fellow
beings1
Aware of the generations of accumulated and accentuated group inequalities, the Constituent
Assembly adopted a constitutional policy of deliberate preferential treatment of the historically
disadvantaged people. First untouchability was abolished and its practice in any form forbidden
vide Article 17. The Untouchability Offences Act Of 1955( Renamed in 1967 as The Civil Rights
Act) adopted legal sanctions in aid of the constitutional prohibition. All temples and religious
institutions were thrown open to all classes and Sections of Hindus 2 . A form apartheid, Long
practised by twice born classes against the untouchables was abolished and all citizens became
entitled to equal access to shops, public restaurants, hotels and places of entertainments and to
the use of wells, tanks, bathing places, roads and places of public resort maintained out of state
funds or dedicated to the use of general public3. Untouchabilty was not only a stigma it was an
attitude of mind4.
However mere constitutional declarations were not enough. The constitution therefore
recognized, promoted and encouraged special treatment in educational institutions and
employment opportunities for the socially less fortunate classes to any office under the state. It
1 Nariman S Fali, STATE OF THE NATION, Hay House, Ed.2013,p:69 This is an extract from the
comments of an English journalist covering Indian General Elections in 1980
2 Article 25(1)(b)
3 Article 15(2)
4 Ibid at 1
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II.
The scope and objectives of this project is to study in detail the constitutional policy of
affirmative action and make a critical analysis as per its evolution and implementation in the
course of six decades and put forward suggestions regarding its efficacies if and where found.
IV. BACKWARD
CLASSES:
HOW
SHALL
WE
DEFINE
THEM ?
While the categories of Schedule Castes and Schedule Tribes were constitutionally
determined, the socially and educationally backward classes of citizens (also designated for
preferential treatment) had been left undefined, even though specifically mentioned in Article
15(4) in 19517
The first backward Classes Commission8 appointed by the Central Government submitted its
report in 1955, listing 2399 castes as socially and educationally backward. However this report
was not accepted by the government since no objective tests were laid out for identifying OBCs.
At that time, the government was opposed to the adoption of caste as a criterion for
backwardness; it would have preferred the application of economic or means test. These classes
of citizens were left to be defined by the states and by the government agencies. But the states
were singularly remiss in not gathering data over the years to enable a realistic determination of
these classes of citizens as compared to the rest of the population of the state. 9 Nor was there
much progress in the amelioration of the lot of these classes of citizens. The absence of any such
constitutionally mandated provisions for determining OBCS led to much speculative reasoning
7 Nariman S Fali, STATE OF THE NATION, Hay House, Ed.2013,p:70
8 Kaka Kelkar Commission
9 Ibid at 7
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V.
In January, 1979, the Government of India by an order issued under Article 340 of the
Constitution appointed a second Backward Class Commission to investigate the second
Backward Class Commission to investigate the conditions of socially and educationally
backward classes within the territory of India. The Commission was known as the Mandal
Commission after its chairman B.P.Mandal, a former chief minister of Bihar. The report of
Mandal Commission which came in December 1980, said that the reservations envisaged in
Article 25(4) applied to socially and educationally backward classes, not to economically
backward ones and concluded that in view of the permanent stratification of a society in a
hierarchical caste order, low caste status had a direct bearing on a persons social backwardness.
The commission then recommended a 27 percent reservation in favour of OBCs in addition to
the existing 22.5 percent. The recommendation of the commission were accepted by V.P Singh
government. As expected there was protests as well as self immolation against the acceptance of
the commissions recommendation. The implementation of the report was challenged in Supreme
Court13. The group of Writ Petitions was first heard by a Constitution Bench headed by CJI
Raghunath Mishra and then referred to a special bench of nine justices. Of the vital points raised
in the court there did emerge a majority view (6:3). This is what the court said:
i.
That neither the Constitution nor the law prescribes the procedure or method of
identification of backward classes; nor was it possible or advisable for the court to lay
ii.
That it was necessary for a class and that it was similarly situated to the Schedule Castes
and Schedule Tribes; backward classes of citizens could not be identified only and
iv.
In Indra Swahney, a great opportunity to lay down the limits beyond which the government could
not execute the policy of reservation was passed over. Where the court could have and should
have, spoken authoratively it refrained from doing so, particularly in context with the question
whether reservation is anti-meredian. Whilst correctly holding that it may not be said that perse reservations are anti-meredian the court did not say were certain services and positions where,
whether on account of the duties attached to them or the level at which they obtain merit only
counts. But then the court went on to simply caution that in such situations it may not be
advisable to provide for reservations, it was for the government of India to consider and specify
the service and posts to which the reservation shall not apply 14. With utmost respect to the
learned judges of the Apex Court it would be fair to say that they derelicted on their duty to
provide a firm constitutional guidelines for implementing and executing the policy of
reservation when they passed on the buck to the Government of India.
It can be hardly argued that once a backward class, nlways a backward class as this would
defeat the very purpose of special provisions made in the constitution for the
advancement of backward classes, and for enabling them to come to the level of and
ii.
iii.
There has been too far much dithering on this subject. What will help, I believe is a continuous
and assiduous gathering of data, a continuous process of objective re-evaluation of progress
registered by the backward categories, a more focused preferential treatment for the
disadvantaged and vulnerable and above all a broader constitutional vision on the Part of Indias
Supreme Court and Parliament of a more egalitarian society together with a firm articulation of
this lest an otherwise deserving policy of reservations be degraded into a vote catching exercise
leading ultimately to reverse discrimination.
VIII. REFERENCES
BOOKS
Nariman
S Fali, STATE
Ed.2013.
Marc
Glanter:
OF
COMPETING
BACKWARD CLASSES
IN
LAW
AND
THE
C.
Heredia
Quoatas
and
Minority
Rights:
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