EsE-

A 30u i s Reolky
AleMI:v 2 Intepuaunt
325
TUOLS DE SOCIA TAMSFORH1OK
32 UH AND SUCIAL 1RANT ORKATION IN00
Luio14
these
Naugnas Int the problems indicating caste as a divicive facto
S factors, as
basis of social identity. in addltion to belng a vehicle ol
a kiling are Divisive
thought and speech, language is a reckoning force in politico-cultural decision Socio-Cultural Reality and Role of Caste as a

-ST making.
Caste as a
and Integrative Factor
is prevailing in India
-Ob in India. Caste system
Some other
inguistic culture are
important factors of policy making on the basis of multi- Caste is a socio-cultural
Caste
reality
serves as a divisive factor
in the context of
since Vedic period to till date.
untouchability, honor killing
etc.
communalism,
Imposition of mother tongue as a medium of instruction in primary casteism, communal violence, of human rights of ali
the context of protection
education. as discussed above But in of caste, abo!ition of
discrimination on the basis
Imposition of regional language as compulsory medium of instruction. human beings without any of honor
communalism, secu!arism, prevention
of
untouchability, abolition mamriages,
Imposition of preferential first language pollcy. for the inter-caste, inter-religion
encouragement provided factor and it
killing, s e r v e s as a n integrative
Imposition of compulsory regional lenguage poley etc. encouragement for interdining etc. Caste

for the national integration. Integrative role of caste can

inspires and promotes
3 Community and the La discussion
beclarified through foliowingrenaissanceof the 19h century the
trend setting

Caste as divisive factor During the intellectual

Dayenand Saraswati, Gopal Hari, Jyotiba
Caste provides primordial criterion ofoming and perpetuating social thoughts of Raja Ram Mohan Roy, abandoning class distinctions. Phule tried
appealed for
groups, and renders rigid social division.A caste is a horizontal segmental Phule and M.G. Ranade from the sacerdotal authority
and make them
conscious

division of society spread over a district or a region or the whole state and also to liberate the "As
individual dignity, and said,
masses

education and enjoy

sometimes outsidei tThis definition of caste is adopted by Justice Desai in of their rights through should o n e castee
the same Divine Being, why
creatures are of
K.C. Vasanth Kumar's case. human beings all that since man is essentialyy
deem itself superior to
others?Ranade viewed human society.
n the same case justice Venkataramiah opined as is natural to conclude
that
divine and all men are qua, it instinct in man, is
VA caste is an association of famüies which practices the custom of of the God-implanted
social

endogamy i.e. which permits mamiages amongst the members belonging

which is the consequence
him in 1887
Social Conference founded byforuplift of the
sometimes it equally divine. The National of caste system and gave call.
to such families only. A caste is based on various factors,
to do with campaigned against the evis on abolition of
a race or racial unit. A caste has nothing
awareness

may bea class, It was a platiom for creating public eradication

untouchables. the caste
(Para 10 Vasanth Kumar Case at p. 786) Sankaran Nair popularized
wealth caste for few decades.
Indian Social Reformer,
Caste was
communal violence, untouchability and writings in
Casteism, a spirit of communalism,that caste serves as a divisive factor. movement by speeches
disability of Îndian society.** Swami
Vivekananda

in the society clearly indicates considered as self-infilicted That

prevailing with do not touch me.
confinements on opportunities to identify ourselves
Casteism and communalism put restrictions and had stated, "We refuse entirely It is an orthodox supersition
which
is in none of our
books.
for mamiage alliance, inter-dining and other sociai
intercourses. "Don't
is not Hinduism; it the line.45 He regarded
During the national life all along
Casteism is prevailing in the Indian Society since Vedic period. has interfered with
irational and inhuman approach, and called for its
divided into three social classes viz. warriors, as an arrogant,
early Vedic period, Aryans were touchism
view of Dhamashastras, thé society
was
priests and the c o m m o n s . In the and Shudras.
kicking out. attained considerable
attention in the
course

Vaishyas Anti-untouchability approach 1920's religious

divided into four varmas namely-BrahminsKhatriyas,
Brahmin killed a Shudra, movement for
freedom. Gandhiji suggested in movement was
The punishing system was also different of nationalist
a
caste and untouchability.
Temple entry
much lesser than when a Shudaakilled a
Brahmin.
solutions to the evils of Gandhiji had soft policy of
punishment prescribed was Kerala.
killing is an of Maharashtra and
It had resulted into a problem of caste as divisive facto Honor started in certain parts
of caste as a divisive factor
extreme dimension of a problem communal violence, untouchability,
honor 42. lbld, at pp.
274-75.
Politics in India
(Cambridge University
Press,

Thus, casteism, communalism, Society and

43. Susan Bayly, Caste,
178.
Cambridge 1999) at p. Calcuta
Ashrama,
Universty Press, New Delhl 2000, 44. lbid, at p. 182 Culture and
Socialism (Advaitha
40. Ande Beteille, Antinomies of Society (Oxford same same time Vivekanand, Caste,
"t unites those who are of the tongue and at the 45. Swami
P.78.
2002) P.
at 280, 1950, 198S) at.
divides those who are of different tongues.
v. State of Karnataka,
1985 Supp. (1) SCC 714.
41. K.C. Vasanth Kumar
 SCs, S7, ba tit twward dgses
ATY AND SOCIAL TRANSTUPMAION IN IHOIA TOCLS OF SOCAi 1RANSFGRMATIOY
37
weaning away the caste Hindus from the practice of untouchability and lso STs and other wealker Sections. reservation of the seats for the SCs, STs in
placating the depressed classes to adopt clean way of life with boldness State Legislation Assemblies, President's power related to an identification of
Regarding vama system Gandhiji had a belief that it provided for divislon ol SCs and STs etc.
labour and not social
inequality. He opined, "All varnas are equal, for the
community depends no less on one than another. He regarded superiority The aforesaid pravisionsare as discuss belo
one varna over anotBier as
of
denial of law; caste system as hammful to botfi
Eradication/ abolition of untouchability is the main provision relzted to
spiritual and national lhfe; the rejection of caste based discrimination. It is contained under Article 17 of
and untouchability, an unwarranted beliet and
inhuman sin.6 theConstitution of India. Article 17 declares that-"untouchability is abolished
and its practice in any form is forbidden. The enforcemert cf any disability
In late 1920's,
Dr. B.R. Ambedkar emerged as the
champion of the, arising out of 'untouchability' shall be an offence punishable in accordance with
cause of Depressed Classes by his speeches and writings on the wrongs
inilicted upon them|He stood for annihilation of caste and bitter law."
of Shastrik prescnpbons of caste discrimination. denunciation Article 17 read ith Aricle 15/2) protects an 1ndindual from
Going to the religious roots of
caste system, he found solution for the
problem in discarding religious practice Giscriminatory conduct not onky on the part of the State but even an he part
itself. He disagreed with the division of labour theory of caste as it of the private persons in certain situationsJThe Suprerne Court has stated that
provided for -whenever any fundarnental right like Article 17 is violated by a private
watertight compartments. He said, "As an economic organization caste is,
therefore, a hamii institution inasmuch as it involves the subordination of individual, it is the constitutional obligation of the State to take necessary steps
man's natural powers and inclinations to the exigencies of social rules."/He to interdict such violation and ensure observance of the Fundamental Right by
the private individual who is the victim of transgression. The State is under a
held that caste had killed public spirit, destroyed sense of public charity and constitutional obligation to see that there is no viclation of the fundamental
impeded public opinion; and thatit failed to sympathize with the deserving and rights of such person.50
ionored the interests of meritorious Since nothing could be etemal, and
change is the law of life, society had the responsibility of revising its standards LArticle 1512) provides that no citizen shall, on orounds oniy ct reiaion.
and of bringing revolution regarding old values, he reasoned." Jawaharlal ace, caste sex, place of birth or any of them, be subjected to any disability
Nehru believed in equality as the dominant value of the new age before which ability, restrictionor.condition with regard to
eaccess
caste system could not stand as archaic superstructure. Since caste does not to shops, public restaurants,
entertainment; or
hotels and places of public
stand by itselí, but is an integral part of the larger scheme of social
organization, changes shoud be brought in larger sphere through social
and Po the use of welis, tanks, bathing ghats, roads and piaces of public
economicforces to build upa cohesive and stable social organization. Tesort maintained wholly or parly out of State funds
to the use of the general public.
or dedicated
Non-discrimination on the ground of Caste Article 23(1) prohibits begar and other similar forms of forced
There are various provisions incorporated under the Constitution of India labour.
(bonded labour). Article 23 aso prohibits traffic in women jogins and devadasi
These provisions are
related to nondiscrimination on the ground of caste. system thrive on cnuel monster of custom). Since untouchability is traditionally
mainly contained under Articles 17, 15(2), 25, 29(2), 15(4), 15(5), 16(4), 16(4- associated with exploitative practices of slavery and temple prostitution, this
342 etc. These provisions are
A), 16(4-B), 46, 51-A, 330, 338, 338-A, 341, prohibition has great relevance.
such a s eradication/abolition of
categorized under various categories Article 25 guarantees freedom of religion and its exercise thereof is made
basis of caste, protective
untouchability, prohibition of discriminaion on the available to all.
Sub-clause (2)thereof envisages that nothing in that article shall
Scheduled Castes, Scheduled Tribes.
compensatory discrimination in favor oí affect the operation of the existing law or prevent the State from making any
Other Backward Classes etc.
Socially and Educationaliy Backward Ciasses, law to provide for social welfare and reform or to throw open Hid reigious
reservation policy, equal right to freedom of religion, protection of institutions of a public character to all classes and sections of Hindus Further
through
edcational and economic interests of the SCs,
minority righis, prornoticn of religious freedom is conferred subject to other provisions of Part of the
Constitution (which includes Article 17) Hence, the policy of aboition of
18-7-1936.
46. M.K Gandu, iHarian, 11-7-1936 and
47. B.R Ambedliar, Annihilation of Amiya P. Sen, Social and
Caste extracted in

Religlous Refom (0riord Urver sity Press, New Delhi 2003) at p 192 50 MP Jain, Indian Constitutional Law (5th
2005} at p 973; also see, P Edn, Wadhwa Publcations Nagpur
Ishwara Bhat, "State Actien and inactionA Socia
43. Ibid, at pp 19699 Justice Perspective" (1995) 2 Kashmir University Law Ruiew1
49 Jawaharlal Netru, Diceoveny of India, at pp 2i6-47
 UW AND SOLII TRANSfURMAHUR IR IRUIA
328

religious freedom. STs in proportior to their population in respective state, The reservation is to
untouchability prevails over

denial of adrmission into an cducational institution Cxpire in 60 years from the commnencernent of the Constitution. Ir. Panchayats
Article 29(2) prohibits grounds only of and Nagarpalikas reservation of seats for SCs and STs is provided through
State receiving aid out ol State funds on
maintained by the or
State has constitutional amendment National Cormrnissions for SCs and STs are
religion, race, caste, any of them. Under
language or Article 154)
to make special provision for the advancement of any socially and constituted under Articles 338 and 338A,to investigate about all matters
power
educationally backward of citizens or sor the Scheduled Castes and
classes relating to safeguards, inquire into complaints about depriation of rights, to re
Scheduled Tribes. By Constitution Amendment, the scope of special
93 amend for their better protection.
institutions whether
provision is extended to admission to private educational
aided or unaided by the State 1Article 15(5)1. provides for State's
Article 164) Articles 3384) and 338A(4) prescribe the folowing duties of the
in the matter of public employment in favor of any
respective Commissions
power to nake reservation ato inuestigate and monitor all matters relating the
is not to safeguards
backwerd classes of citizens, which in the opinion of the State, provided for the Scheduled Castes (Scheduled Tribes) under this
adequately represented in the services under the State.There is of
extension Constitutiono r under any other law for the time
Scheduled Tiibes in being in force or
tinis policy 1o provide 1esenvation for SchcducdCastes andReservation of posts
under any order of the Government and to evaluate the
working
promotion with consequcntial seniority [Article 16(4-A}) of such safeguards;
vacancies of
exceedung 50 per cent limit in order to fill up the backlog t o inquire into specific complaints with respect to the deprivation
Scheduled Castes and Scheduled Tribes is also permitted [Article 16 (1-B)]
action and of rights and safeguards of the Scheduled Castes
Thus, the policy of substantive equality through affirmative (Scheduled
protective discrimination has been contemplated to deal with the problem
of Tribes);
social backwardness arising from caste discriminations. As will be discussed e to participate and advise on the planning process of the
litigations, political economic development of the Scheduled Castes socio
later, this has witnessed numerous constitutional (Scheduied
controyersies and social agitation on various counts and at stages. various Tribes) and to evaluate the progress of their
and the Union and any State; developrnent under
CArticle 46 guides the State towards promotion of educational shall
2conomic interests of the SCs, STs and other weaker sections, "The State d to report to the President, annually and at such other times as the
of Commission
promote with special care the educational and economic interests the may deem fit. reports on working of those
weaker sections of the people, and in of and
particular, the Scheduled Castes safeguards;
he Scheduled Tribes, and shall protect them from social injustice and all foms ( t o make in such reports
f exploitation." recornmendations as to the measures that
should be taken by the Union or
State for the effective
Fundamental Duties imposed under Article 51-A have great bearing
owards tuning of individual behavior vis-a-vis fellow beings in the direction of
implementation those safeguards any
of and other measures for the
protection, welfare, and
2schewing untouchability. Since abolition of untouchability was part of the socio economic development of the
Scheduled Castes (Scheduled
cheme of freedom struggle, the duty under 51-A(b) to cherish and follow the Tribes);
t o discharge such other functions in
oble ideals which inspired our national struggle for ireedom gains significance welfare and development and relation to the protection,
n this context Sinilarly, the duty to promote harmony, spirit of brotherhood
Castes (Scheduled Tribes) as advancement of the Scheduled
mongst ail the people transcending sectional diversities, etc. to develop the President may,
provisions of any law made by Parliament, subject to the
cientific temper, humanism, thhe spirit of inquiry, reform and to strive towards The Constitution (Eighty Second by the rule satisfy.
in all
Kcellence rises to of individual
spheres and collective activity so that the nation National Commission Amendnent) Act, 2000 bifurcated the
higher levels of endeavor and achigvement has a valuable into two
onstantly
nput for rejecting untouchability in individual condtuctJMore importantly, the Regarding identification ofseparate
SCs and
commissions.L
power of public notification STs, he President is vested with
uty to develop scientific temper and humanism
ombat untouchability since the latter is
has great potentiality to
groups to be deenned to be
of lists
specifying castes, races, tribes or the
product of superstition and blind
alteration of the list of SCs andSCs and STs under Article 341.and 342. parts of
radition. is STs, the Parliament's law For
Under Articles 330
and 332,
provisions are nade to reserve seats in the regarded conpetent (Article 34 1(2)1
as making power alone
fouse
of People and State Legislative Assemblies respectively for te SCs and
51. E.V. Chtnnaiah v.
State of A P, (2005) 1 SCC
394 AR 2005 sC 162
 ToLs Dr saci THANSFORMATION 321
33 LAW AND SOCIAL TRAHS/ORHATION IN INDA
not have
otherwise agreed;
she would reservoir or any other
(The Scheduled Castes and the Scheduled Tribes(Prevention ol Aluocties) bxi corrupting or
the water of any spring,
fouling
SC o r the ST so as to
Act. 19889 is one of the prominent provisions under lndian Lcgal suslem used by mernbers of the
source ordinarily
related to the non-discrimination on the ground of caste. the purpose for which it is ordinarily used
render it less fit for
lts prominent features are-Firstly. the SCSTPAA is applicable to of public resort or
(oedo) denying any customary rites of passage to a place
acts done by non-SCs and non-$Ts against SCs and STs coming within the
obstructs such mernber so as
to prevent him from using o r having
purview of the Act. Thus, it is basically meant to deal with class conflicts, resort to which other members of public
access to a place of public
collective violence and individual actions by motivated either untouchability or section thereof have a right
to use access to; and
or
attitude of oppression. The legal approach of offsetting the social inequalityo any
to leave his house, vilage or other place of
of the Act. (a forcing or causing
gross type is clear in the elaborate policy
for residence.
Secondly, it defines "atrocity" descriptively and prescribes punishment
a SC factor to under Past injustices
to Section 3(1) whoever, not being a member of
or of Caste as a
the same. According i*) Acceptance
member of SC or ST shall be
towards in existence in Hindu religion from 1500
BC to,1952
a ST, does any of the following acts a
LCaste system was
tem which shall not be less than six called Varnas four
punishable with imprisonment for a AD. In this system people were divided into four categories
which may extend to five years' and with fine. These incude- viz. Bhahmana, Kshatriya, Vysya and Shudra. Brahmana were considered as
months but substances; Shudras considered as lesser
to drink o r eat any inedible or obnoxious supreme in the social structure and the
were
forcing discriminated class in the
intent to injury, insult or annoyance by dumnping human beings or untouchables. They were the most
) acting with cause

excreta, waste matter, carcasses or any other obnoxious

substance social structure of the indian society. Therefore the acceptance of caste as a
factor to undo past ínjustices and the creation of reservation in favor of socially
in his premises or neighborhood;
with painted and educationally backward classes on the basis of caste was essential to give
forcibly removing clothes or parading him naked or

or commits any similar act

which is derogatory to relief to them.
face or body
The caste set up in Indian society was one of the biggest challenges to
human dignity;
or cultivating by, or allotted
any land
owned social justice. The division of individual into high and low caste, oppression of
kwrongfully occupying be allotted to, a
authority to lower caste people by the higher castes people resulted in the caste riots. Due
to, or notified by any competent
member of a SC o r a ST or gets
the land allotted to him transferred; to casteism large sections of the Indian Society belonging to low caste do not
from his land o r premises o r interfering get adequate oppotunities to improve their socio-economic conditions and
wrongfully dispossessing
with the enjoyrment of his rights over any land/ premises
o r water;
deprved of their legitimate righs and thus became the victims of social
injustice. In Indian social order caste may be defined as a collection of groups
do "beggar" or other similar forms of
compelling or enticing to of
forced or bonded labour other
than any compulsory service for families which is usualy associated occupation
with specific Dr. Ambedkar

public purposes imposed by

Government; emphasized that what
labour but also
was implicit in caste system was Tormerely division of
division of laborers. It is not
a
to a particular the occupation which is
not to vote or to vote
i forcing or intümidating ihat provided by law; responsible for caste but it is the caste system which was the basis of assigning
candidate or a m a n n e r other than
to vote in Occupations."52
vexatious suit or criminal or other legal
Kii) instituting false, malicious
or
President's notification of Scheduled Caste issued in 1950 was the
proceedings;
and servant
starting point of protective discrimination in favor of socialiy and educationally
or frivolous
information to any public
k) giving any false the
backward classes and an acceptance of caste as a factor to undo
servant to use his lawful power to past injustices.
thereby causing such public SC or a ST;
Various Backward Class Commissions appointed
by State and Central
member of a
injury o r annoyance of a Govemment have used the criterion of caste as one of the
with intent to humiliate in any parameters to
Aintentionally insulting or intimidating determine backwardness. The First Backward Classes Commission 1953
(Kaka
place within public view; Kalelkar Commission) said that low social
belonging to a SC or a ST position in traditional casta
i) assaulöng or using force to any woman
hierarchy, lack of education, inadequate representation in govemment service,
Awith intent to dishonor or outrage her modesty;
of a woman belonging to a
Kin) being in a position to dominate the vwil
to exploit her sexually to which 52 D: Ambedka: on Caste syst2m. 1949 ai p. 202
SC or a ST and using that posiuon
 Aottetut Digunivitin
AW AO SOCIAL TRANSIAMOK IN IKDIA G615 P S0CIAL TRAHSOMAO 313
ade, commerce or mdusty were the causes lor backwardness The the Constitutlon First Arnendrment Act,
ackward Classes Commissicon, 1979 (Mandal Second 1251, Reservation proides rotectrve
Comnisslon) considered caste dicrimination in favor of SCs, STs and OBC
s a natural collectively for
deining backwardness Judiclery has consisteritly eTphasized on application uf nuiple factor
lndian Judiciary has constantly and consistently tcsts In entifying the beneficiarles of
mphasized on protecive discrimination.. and has
pplication multiple factor tests ie caste cum means tests for the decined to rely solely on caste in
tdentifying backwardness. It was said in M.R.
lenifican and detennination of beneliclaries of protective discrimination Balaji v. State of Mysore." "Soclal backwardness is on the ulumate aralysis
the resault of poverty, to a very large extent. The elases of citizens uho are
Proisstisuaimiunation
Bacsward Classes
Scheduled Castus Tvibes and deplorably spoor autornatically become socially backuard. They do not enjoy a
status in society and have, therefore, to be content to take a bachward seat It
dian Constitution
Constitution specifirally under
aled as a social document. It is a livng law. The s, true that sociol backwardness which results frorn poverty is ely to be
Article 154) and 16(4) _provides for the aggravated by considerations of cate to which the poor citizens may telong.
reservation for the baclkrard classes. The cially and educationally backward
casses are to b given preíerence by way of reservation. This preference is butthat only shiows the rdevance of both caste ard poverty
backwardness of citizens."
in determauing the
called as protective discTimination. Alter Thomas case, it is called as
In R. Chitralckha v State of MysoreS the Suprene Court
compensatory diserimination.
Resenation benefit through protective discrimination.is puailable to the emphastzed that under no clrcumstances a "class" can be equated to "caste" a

Scheduled castes tribes andbackward classes i.eSCsSIs and OBCs. though the caste of an individual a group of individuals may be considered
or
along with other relevant factors in putting him in a particular class. The Court
Jn Thomas, new interpretation of Article 16(1) of the Constitution was clarifiedthethat if in a
given situation caste is excluded in ascertaining a class
made by the Suprerne Court. In this the important question for 1the meaning of Article 154) of the Constitution,
case

consideration of the Court was whether it was pemissible to give preferential

within it does not, vitiate the
classification if it satisfied other tests. In C.A. Rajendran v. Union of India
treatment to SCs and STs under Clause(1) of Article 16, i.e. outside the
Court held that the Ramaswami,onJ. tookand
care to say. "..if the reservation question had beenin

gxception of caue (4) of Article 16The Supreme had not taken into account the sociai and educanonal
classification of employees belonging to Scheduled Castes and Scheduled based only caste
backwardness of the caste in question, it would be violative of Article 15(1) But
Tribes for allouing thern an extended period of two years for passing tests for it must not be forgotten that a caste ts also a class of citizens and if the caste as
reasonable
promotion from other dasses of employees was a just and a whole is socially and educationaliy backward reservation can be made in favor
classificetion 'having raticnal nexus to the object of providing equal a caste on the graund that it is a
of such socially and educationally backward
opporturnities for ell ciuzens in matters relating to employment or appointment class of citizens within the
meaning of Article 154)." In the instant case the list
the public office. The temporary relaxation of text qualification made in and
to
their overall ofthatsocially backward classes had been specifled by caste. But
educationally
favor of SCs and STs was warranted in the services in view of did not necessarily mean that caste was the sole consideration and that
backwardness. The only relaxation was that they were granted two years
more

Court held that

persons belonging to these castes also not
were class of socially and
a

time to acquire the qualification. Thus, in this case the educationally backward citizens.
reservation for bachward classes can be made even outside
the scope ol Artice In State of A.P. v. P. Sagar" the Court held that the expression
of Articles 14, 16{2) and is valid. Thus, in the said case,
1614). It is not violative "class" in Article 15(4) meant a homogenous section of the people greuped
the Supreme Court has made niew interpretation of
Article 16(1) of the
the concept of together because of certain likenesses or common traits and who are
Constitution in the context of Article 161) and validated ldentifiabl by some common attributes such as status, rank, occupation,
protective discrimination residence in a locality, race, religion and the like. In determining whether a
nakers were fully aware about the social inequalities particular section forms a class, caste cor not be excluded altogether but it
Jhe constitutin STs had
prevailing in the lndian Society They knew very well that SCs and could not be solely relied upon. In view of the attenpt to balance the special
been victims of untouchability and oppression Weaker Sections of the soclety
in the in practice to achieve their progress in life due to thelr
were not poition
Article 16(4) in the AlR 1963 SC 649 at p. 659 per P.B Gajendragadkar, Cll
ulnerability. Henee the constitution makers incorporated 54
S5 AlR 1964 SC 1823.
Article 15t4) was added by
Consiiution to
conesponding draft Article 10(3) S6. AlR 1968 SC 507.
57 AlR 1968 SC 1379.
. State of Herola v NM. 7 homas, AIR 1976 SC 490. (1976) 2 SCC 310.
Key ewwotton Polru tatuioy MoTionol tjohoh
334
N AND SOEIA TUOiS DE SOtN TPANSFOKATIOH
TRANSTORHANPN IN INO0A
necessities of the weaker
sections of the and especially covers the concept of ss-
made tor their people by allowing a provision to be Reservation policy essentially an achievcment of t
advancement as
against the right of equality of citizens social justice is tulfled with
ooecuve approach was such justice. The concept of
indispensabie. Inclusion of an
principles of equality, liberty. justice
and atermity. Resa tion policy urdar
idendlicaion of backwardness religion
as a aiterion for fulfills the requirements of equality in reasonable and
is, however, not convincing as it the Constitution of india
secularism. and sice religions bear no goes against and justice to ail which is essential for the social
indicia of backwardness. In Indra true sense. t also coveTs liberty
Sawhney the majority
of the court considered transformation and human development
initial reference religious communities as of concept of
groups for surveying and identification of
backwardness,
lor the removal
A spirit of fretemity is most esseritialWithout
because the identilication transiomatüon and
sociai
process should begin somewhere. and untouchability from the minds of th2 people.
entire popuace should be
urveyed. There is no indication of wimately justice to all, upliftrnent
of the weaker sections of
the society cannot be

factor of beckwardness to any attributing; the of equality, liberty, justice and fratemity should be in the
religion. possible. The ideais
and to fulhl he concept of
in K. S. Jayasree v. State of to make the society prosperous
Kerala,
in question was a society in order Consttution. The goal of the law
order spedtying that only itizens who are members govemment state' enshrined in Part V of the
of families which had an 'welfare Articde 154) and 164) under the Indian
aggregete income of less han Rs. 6000 per annum and which pertaining to reservation urnder
caste and commniy mentioned in the
belonged to the
Constitution is to make upliftrment of the SCs, STs,
backward classes and
annexure to the govemment order
the society prosperous through an
woud constitute socialy and educationally backward dasses for weaker sections of the society and to make
the purposes of achievement of noble ideals of the Constitution of India.
Aricde 15(4). The Cout upheld the order and held, "Caste cannot however be
laid down in the consttudonal
made the sole o r dominant test.. Social backwardness, which results from The law pertaining to reservation is
under Articles 14. 15, 16, 29, 30. 46.
is provisions in dear terms. It is contained
povery. lkely to be asgravated by considerations of their caste. This shows
335 and it is reflected in the Articles 17, 37, 38, 39, 41, 42, 45,
330. 332,
the relevance of both casie and
by itselí
poverty
the
in the backwardness of
determining 338, 339, 340, 341, 342 and like that. Articles 15(4)
and 164) contain the
izes. Poveriy
Poverty is relevani
not
is factor of social backwardness.
determining
in the contet of social backwardness. Justice o. Taw pertaining to the reservation in India.
But the Supreme Court had to
the reservation was provided by
Chinrappa Reddy in KC. Vasanth Kumar considered class poverty, not interpret this law. It was so because wheneve
the Court ot
the State that was challenged on s o m e pretext or the other into
individual poverty. as the rimary test. Othe ancilary tests wvere the way of
law and Court had to interpret it.
ife. the standard of iving. and a plece in the sociel hierarchy. the habits and
The were fuly aware about the sociai inequalites
constitution makers
austoms. plece of residence etc. He said, "Notwithstanding our antipathy to
be prevailing society. They knew very well that SCs and STs had
in the Indian
casteend sub-regionalism. these are facts of life which away. cannot wished of the society
i tey reilect povery, which is the primary source of social and educational been victims of untouchability and oppression. Weaker Sections
were not în the position in practice to achieve
their progress in ife due to their
backuardness, they must be recogmized for what they are along with other
was favored by otheT judges in
less
the ulnerability. Hence the constitution makers incorporated Article 16(4)
in the
prinary sources." Caste-plus-means test Constitution coresponding to draft Articde 10(3). Article 15(4) was added by
laid dowm íor identification of
same case
where broad guidelines were the Constitution First Amendment Act, 1951. Reservation provides protective
eciuard cpess. discrimination in favor of backward classes.
the
Reservation in the educational institutions and reservaion
n
Reservation Poliy, Statutory Commissions, Statutor The policy
Provisions and Problerns of National Integrationn Govemment / Public employnments has caused unrest in the society.
the people in
of the reservation which is constitutional gives the idea that
Keserveton under the provisions of the Constitution of India cleardy that is not conect
TCeies touards ine socal bansiomation and a spint of human development.
general may not get the equal opportunities. But
classes through Article 15/4)
By doing the reservation for the backward
he concept of reservation policy is specifically contained under hezds of classes are benefited but not at the cost
of open
Preame. Furdemental Rignis, Directive Priniples oí Siaie Policy and special and 161. the backward to bring equality in the socie. By
Reservation is provided
prcvisios ior SG and STs under Part XVI of the consitution of India. category people.
of backuard dasses is certainly improved.
providing reservation, the condition
1992 Supp.(3) SCC 217: 1992 SCC (L & S
53
ndro Sozhney Union of India. submited Rasheen: Tukdoj ahara; Negs
Sipp 61 Quo:ted from my Ph D Thezs
Awarded o n 19/N1/2016
59 11976) 2 SCC 730 AR 1976 SC 23S1. Uniersit. Nagpur (Ph D.
KC senth Kumar Siate of Kor.a:aka, AIR 1985 SC 1495, Parz &0.
E v.
 3sb LAW ANO SOCIAl TRANSFORAMATIDH IN INO1A TOCiS DF SCCIH TRALSEOPMATION 337
Reservation policy is
justified as a means of basic unit of social organization
equalityArticle 14 of
constitution pemits reasonable classification but forbids our of Hindu society. The Commission has also
Reservation policy is justified on the class leg1slation. applied some other tests like stigma of low occupation, criminality, beggary
basis that each and every Indian and untouchabtlity to identify social backwardness.
citizen is
equaliy entitled to have right to Inadequate representation
in Public Service has been taken as another important test. In effect the
cmploynent and right to education, right to work, right to
edopted, the
development.
doors of the educational
lf reservation
policy had not been
Mandal Commission has virtuailý made caste a predominant test to identify not
would remain institutions and public employments only. Other Backward Classes among the
Hindu Society but all the backuward
practicaly closed for the backward classes classes
in Non-Hindu
religious The Commission
groups. totally rejected the
open. These classes could not though technically econonic or poverty test and said--"As Article 340 of the Constitution speaks
and public employments.
get equal representation in the field of education
of "Socialy and Educationally Backuard Classes"
the application of 'eccnomic
Reservation Policy in India is justified on basis of Article test' for the identification seems to be misconceived.3
Constitution- which enshrines the concept ofthe 14 of Indian
equality. Article 14 of Indian Statutoryprovisions related to the reservation are contained under
Constitution says that like should be treated alike and not an
treated alike. It permits for reasonable unlike should be Articles, 14, 15, 154, 15(5). 16, 164) 164-A) 1643). 29, 29(2, 30, 46,
It clarifies that administration of
cassification but iorbids class legislation. 335 and these provisions are reflected in the Azticles 17, 37. 38,3811 39
equal treatment is 39-A, 41, 42, 45, 330, 332. 338. 339. 340, 341l 342 and like that. Articles
circumstances. It the circumstances are diiferent and justified
in equal
equal treatrment is 154) and 164) specifically contain the law pertaining to the reservation_in
provided; then it would result into an injustice rather than
justice.
India. Article 16l4) in the Constitution corresponds to draft Article 1013)
The persons belonging to backward classes are in Article 154) was added by the Constitution First Amendment Act, 1951
Therefore, unequal treatment to them is
disadvantaged position. Statutory provisions related to the reservation provide protective discrimination
justified on the basis of equality.
Various Backuward Class Commission_ appointed by in favor of backward classes. These provisions crucial for the uplhftment of
are

Govemmnent viz. Kaka Kalelkar Commission, State and Central backward classes.
Naganna Gowda Committee, A spirit of casteism produces problems of national integration. When
Kumara Pillai Conmission, Sattanathan Commission, Damodaran Commission
and Mandal Commission have used the criterion of caste as one caste serves as a divisive factor it results into problems of national integration.
of the This concept is already discussed in topics 3f) and 3() of this Chapter.
parameters to detemine backwardness.

The First Backward Classes Commission, 1953 (Kaka Kalelkar Role of National Commission for Backward Classes
Conmission) submitted its report in 1955 where it observed that there were The problems of wrong inclusion and
citizens in the list of Backward Classes
non-inclusion
dealt
of any
the National
class of
other communities, castes or social groups which were also socially and are by
Commission
for Backward Classes. The Nattonal Commission for Backward Classes Act,
gducationally backward besides Scheduled Castes and Scheduled Trbes.
Commission made it clear that the members of commission were anxious to 1993 was enacted to constitute this body in response to the direction given in

eradicate the evils of caste systemn. They tried to avoid the caste but they found the
the
hdra Sawhneytojudgment. Under
the
Section 9(1) of the Act, class
for inclusion of
the function of
it difficult to ignore caste in the present prevailing conditions. The members
wished to dissociate caste from social backwardness.2 as a
Commission is examine requests of citizens
any
Backward Class in the lists and hear complaints of over-inclusion and
under-inclusion and tender such advice to the Govemment as it deems
The Commission said that low social position in traditional caste
appropriate. The advice of the Commission shall ordinarily be binding upon
hierarchy, lack of education, inadequate representation in the Government
the Central Govemnment
Services, trade, commerce or industry wëre the causes for backwardness. (Section 9/21 At the expiration of three years tromn
the enforcement oí
the Act, and after every succeeding period of 10 years
The Second Backward Classes Commission, 1979 (established on 1st Jan. thereafte, the Govermment is bound to revise the lists in consultation with the
1979) i.e. Mandal Commission also considered caste as a natural collectively
for defining backwardness. This Commission in its report mentioned few Commission with a view to exclude therefrom those classes who have ceased
Criteria of backwardness on the basis of which socially and educationally to be Backward Classes, for
or including in such lists Backward Classes
new
Section 11). Thus, backwardness is not a fixed status. Its determination is
backwardness classes may be identified. It was strongly recommended that based upon factual situation, which varies along with social transformation. Its
caste must be accepted as a unit of identification of "Other Backward Classes
(OB) among the Hindu. The Commission was of the view that castes are the
63. Mandal Commission (1980) Vol l and Il at p. 54.
62. Report of the Backward Class Commission 1955, Vol. 1 at p. 41
 IRARSFORMATION IN IHDIA
338 AW AND SUCIAL

objective deteminatio is a responsibility upon tlhe NCS.

vi) AffirmativeAction (Reservation) about the social

inequalities
makers were fully
aware
constitution STs had
well that SCS and
he
They know very
prevailing in the Indian Society. Weaker sections of
the society
been victims of untouchability and oppresion. due to their
to achieve their progress in life
in practice
Were not in position Article 16(4) in the
Hence the constitution makers incorporated
ulnerability.
Article 10(3) Article 15(4) was added
by
Constitution conesponding to draft
protective
Frst Amendment Act, 1951. Reservation provides
theConstitution
discrimination in favor of backward classes law pertaining to
had interpreted the
The Supreme Court of lndia w e consider
most of the
in a very systematic
and lucid way. 1f
reservation
India then we get
which were decided by the Supreme Court of
leading cases
These principles indicate
pertaining to the law
of reservation.
various principles
towards reservation asan aifirmative action
backward classes is constitutionally valid.
Reservation for educational
154) reservation can be provided for
Under Article
admitted by way of reservation
the students are to be
institutions i.e.
fixed quota of reservation.
as per the in public
reservation is to be provided
Under Article 1614), the
employments.
detemined on the strength of caste,
The backward classes are

economic critena, economic cum

means test i.e. petty professions
financial limit. (Chitralekha v. State of Mysore)
and yearly
Reservation in education or employments is not the right of the
backward classes.
State taking into consideration the
I t is to be provided by the in the
of the backward classes
inadequacy of the representation
employment.
the Supreme Court that the cary torward
I t has been laid down by
the reservation is valid.
rule of should not exceed
It has also been further provided that reservation

50% at a time.
layers in
The Supreme Court has also recommended that the creamy
backward classes areprovided reservation.
not to be
to the
The decisions of the Supreme Court have subscribed
and the growth of
philosophy of Dr. Ambedkar for the development
in fact. is the
the socially and educationally backward class, which
need of hour.

64. Retrieved fron P Isthwara Bhat, Law and Social Transfommation, Ist ed. 2009 Rep
2012, Eastern Book Company, Lucknuw at p 509.
11.9 Conclusions
created social hierar-
While caste division of the Indian society had
humanists and social reform-
chy and obstructed social mobility, the worth and
ers looked to the aspects of equal
human dignity and con
demned social inequality. The deprivation and exploitation arising
from caste differentiation have been responded by the legal system
commitment to
with preventive and curative approaches, true to its
of
the goals of social justice and equality. Prohibition of the practice
serious commitment
untouchability is both constitutional policy and
social transforma-
through strong legislative framework to spearhead activ-
tion. The trend of development is towards establishing a highly
This has
ist legal measure to deal with the problem of segregation.
yielded good result, although the measure is not a fait accompli.
Affirmative action as a means of empowerment and an instrument
of social justice has taken multiple forms and has been employed by
various levels of government with region-specific political policy deci-
sions. There is considerable change in the composition of the service
in
sector, and the marginalised sections have better representation
this sphere.s8 With the growth of society, the features and charac-
teristics of the beneficiaries and of the categories of reservation also
undergo change. However, objectivity has suffered when prejudice,
favouritism and mere political consideration are mixed with policy.
Exclusion of personsor families who got reservation benefit or of
persons who merged with the forward sections by becomingcreamy
layer from the advantages of affirmative actions would help in chan
nelising the benefits to the weaker of the weakest. Extension of Indra
Sawhney principle on this matter to Scheduled Castes and Scheduled
Tribes also is required. Instead of treating reservation as the be all and
end all of affirmative action, the long-term effect of reservation should
be analysed; the need for actual empowerment of the weaker section