Image credit: Scroll.in, September 26, 2017
Published here is Part II of the blog piece on the Indra Sawhney Case, which examines in-depth, the case of Indra Sawhney, the use of ‘caste’ as a factor in determining backwardness for the purpose of reservation, and the delicate balance between the needs of the society and the constitutional vision.
We hope you enjoy reading this as much as we have enjoyed putting this together.
II. The Mandal Commission and the case of Indra Sawhney
A. The Mandal Commission and its Recommendations
In the year 1979, the Second Backward Classes Commission (Mandal Commission) was set up which was tasked with, inter alia, determining the criteria for defining the socially and educationally backward classes. After an exhaustive survey, the Mandal Commission identified 52% of the Indian population as “Socially and Economically Backward Classes” (SEBCs). Subsequently, it recommended a 27% reservation for SEBCs in addition to the previously existing 22.5% reservation for SC/STs.
In the year 1990, Prime Minister V.P. Singh announced that his government would implement reservations on the basis of the recommendations of the Mandal Commission. Two office memoranda, O.M. No. 36012/13/90-Estt (SCT) dated August 13, 1990 as amended by O.M. No. 36012/13/90-Estt(SCT) dated September 25, 1990 sought to enforce these recommendations. The decision sparked widespread controversy and led to thousands of students coming out onto the streets to protest against the decision. There was a complete breakdown of law and order and some students even immolated themselves.
These two office memoranda came under challenge before a nine-judge bench of the Supreme Court. The Supreme Court was to decide whether the recommendations given by the Mandal Commission could be accepted as correct and constitutionally valid. The matter was heard by the nine-judge bench and by a 6:3 decision, the constitutionality and enforceability of the impugned office memoranda was upheld subject to certain conditions. The leading judgment is by BP Jeevan Reddy, J. (for M.H. Kania, C.J., M.N. Vekatachaliah, A.M. Ahmadi and himself) along with concurring opinions by S. Ratnavel Pandian and P.B. Sawant, JJ. Separate dissenting opinions were given by Dr. T.K. Thommem, Kuldip Singh and R.M. Sahai, JJ.
While the judgment itself dealt with several issues, the discussion herein are limited to the meaning of the expression “backward class of citizens” and the criteria to identify them.
The majority opinion analysed the uses of the terms “caste” and “class” by conducting a detailed analysis of precedent, the Constituent Assembly Debates and pre-independence history. It further referred to the speech of Dr. Ambedkar in the Parliament at the time of the First Amendment where he said that backward classes “are nothing else but a collection of certain castes.” Adopting the same rationale, the majority opinion held that a classification based on caste was constitutionally permissible since “A caste is nothing but a social class – a socially homogeneous class” and that merely because the word “class” is used in Article 16(4), it cannot be concluded that it is antithetical to “caste”. Further, given that caste, occupation, poverty and social backwardness are closely intertwined in our society, the entire caste in many cases, inevitably becomes a socially and economically backward class.
The concurring opinion of Sawant J., also proceeded on a similar rationale. He too alluded to the caste-occupation nexus. He reasoned that if a social group had hitherto been denied opportunity on the basis of caste, the basis of remedial measures must also be on the basis of caste. Even though reservation is based on “caste”, it is not in reality in favour of the caste, but actually in favour of a class or social group which has been discriminated against. Similarly, the concurring opinion of S. Ratnavel Pandian, J. held that a determination of “socially and educationally backward class” beyond the caste label would amount to turning a blind eye to the existing stark reality in Hindu society.
Thus, with the above opinions, six out of nine judges lent their express approval to the use of caste as a means for identifying “backward classes”.
B. The Dissenting Opinions in Indra Sawhney
Of the three dissenting opinions, the opinion by R.M. Sahai, J is perhaps the most extensively reasoned. R.M. Sahai, J inter alia opined: First, since the Constitution uses a wider word of “class” and not “caste”, elementary principles of construction dictate that an interpretation leading to identification of backwardness on the basis of caste ought to be rejected. Second, empowering the state to make reservation under Article 16(4) on race, religion or caste would amount to destroying the purpose and object of Article 16(2) and would fall foul of the rule of anti-discrimination on the basis of caste. Third, identification based on caste would preclude socially, educationally and economically backward members of other communities (such as Bhisties among Muslims) from being regarded as backward classes. 
On this basis, R.M. Sahai J. opined that utilization of caste as the basis for determination of backwardness is constitutionally invalid and even ethically and morally impermissible. He advocated for a system of identification of backward classes that is based on three criteria – occupation (immaterial of whether it is related to caste), social acceptability and economic criteria. Kuldip Singh, J. agreed with R.M. Sahal J. and advocated for identification on the basis of secular collectivity (such as occupation plus income) as opposed to caste collectivity.
Another dissenter, Thommem, J., held that the Constitution is neither caste-blind nor caste-prejudiced, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. However, he reasoned that any reservation solely with reference to caste will fall foul of the rule of anti-discrimination and may result in invidious reverse discrimination.
III. Critique of Using ‘Caste’ as a Determinative Factor
This constitutional bar against classification on the basis of castes is evident in the vision of the framers of the Constitution. They were intent on achieving a caste-less society as seen in the Constituent Assembly Debates and early Lok Sabha Debates. Entrenching the word “caste” in the Constitution would have been fatal to this idea of a casteless society and instead cause its incessant perpetuation. Indeed, there was no mention of the word “caste” in Articles 15 or 16 of the Constitution (as it was originally adopted), except in the context of explicitly barring discrimination.
Our current policy stands in stark contrast to the constitutional vision outlined above, as it permits identification of backward castes as the beneficiaries of affirmative action policies. Such a drastic departure from the original constitutional vision may be attributable to the blessing of the Supreme Court in Indra Sawhney. Indra Sawhney´s equation of caste with class as under Article 16(4) and permitting delineation on the basis of caste may be problematic for several reasons.
Article 16(4) has to necessarily be read in a manner that is consistent with the rest of the Constitution, including Article 15(1) that prohibits the state from discriminating against any citizen on, inter alia, grounds only of caste. Therefore, the interpretation of Article 16(4) must necessarily yield to the broad rule of anti-discrimination under Article 15. In our opinion, the broad rule essentially makes certain considerations, like caste, inapplicable in law. Caste considerations remain a closed path even if the ultimate goal is that of equality.
Considering the above, we think employing caste as a sole or even as a determinative factor to ascertain backwardness falls foul of this broad rule of anti-discrimination and is inherently contradictory to the constitutional vision of a caste-less society. This rationale has been endorsed by the minority in Indra Sawhney, specifically, Kuldip Singh, J. and R.M. Sahai, J.
The majority cites a caste-occupation-poverty nexus to justify caste-based identifiers of backwardness. Undoubtedly, even today there is vicious cycle wherein historically oppressed caste groups are educationally backward and, consequently, remain socially and economically backward. However, if the caste-occupation-poverty nexus is indeed true (and there is little reason to suppose it is not), then the majority does not reason why secular identifiers such as occupation-cum-means tests (disregarding caste, as suggested by R.M. Sahai, J. in his dissent) cannot form a viable alternative. Anyone advocating the use of caste as a delineating factor when the Constitution explicitly bars discrimination on the basis of caste has a high burden to establish that other secular factors may not be appropriate or adequate. The majority fails to deal with this aspect altogether and does not engage with alternative markers of backwardness sufficiently. By not doing so, the majority has departed from a caste-blind constitutional vision and firmly entrenched caste-consciousness in the formulation of policy.
The issue is not merely an academic quibble such as divergence from the constitutional vision. Indra Sawhney’s approval of caste-based reservations has engendered several dangerous practical problems in society. Briefly, these include:
- Equating ‘caste’ with ‘class’ runs the imminent risk of entrenching atavistic caste identities firmly within society. Individuals continue to be acutely aware of their caste and those around them since they are determinative in school and college admissions and public employment.
- A system of reservations based on caste, incentivises even non-backward individuals belonging to “backward” castes (creamy layer) to exploit their caste to benefit from affirmative action.
- Permitting the use of a determining factor that is predominantly associated with only one community is contrary to the basic feature of secularism and operates to the exclusion of religions and communities that do not recognise caste.
- Caste-based reservation has resulted, or at least continued to ensure, that caste identity remains a dominant organising force in Indian society – while caste may have lost on the ritual front, it has gained on the political front.
- Hinging “backwardness” on caste risks creating backward classes within backward classes, as a particular group of people who benefit from special provisions will perennially use its crutches to the exclusion of others within the same caste.
IV. Concluding Remarks
There is no doubt that the constitutional guarantee of equality of opportunity can be achieved inter alia by discrimination with reason. However, like any other classification, any differential treatment must necessarily connect to the constitutionally permissible object. Essentially, the issue before the Indra Sawhney court was (i) whether the classification on the basis of caste is permissible, and (ii) whether there is a rational nexus to such caste-based classification for the advancement of backward classes of citizens.
The authors answer both the above questions in the negative. A classification on the basis of caste is impermissible in light of the constitutional bar against discrimination on the basis of caste. This cannot be circumvented by stating that the classification is not on the basis of caste in itself, but only using caste as a marker for identification of backward class, since it would still amount to recognition of a caste-collective, that is impermissible under the Constitution. Further, there is no rational nexus between classification on the basis of castes and advancement of backward classes as ‘castes’ and ‘classes’ are conceptually different, even though there may be a high degree of empirical overlap.
In Indra Sawhney, the Supreme Court was tasked with resolving “complex problems of Indian Society, wrapped and presented … as constitutional and legal questions”. Unfortunately, it seems like the Court has not been successful in either – while attempting to resolve societal problems, the Supreme Court has not only lost sight of core constitutional principles, but also exacerbated the societal problem of casteism, for reasons outlined earlier. It has whittled away the deliberate distinction between “caste” and “class” that the framers struggled for and thus, the case stands on constitutionally shaky grounds. In trying to settle a constitutional question, the Supreme Court unwittingly opened up a political can of worms.
* The author was assisted by Manasa Sundarraman, Associate
 Smita Narula, Broken People: Caste Violence Against India’s “untouchables”, 38.
 David Keane, Caste-based Discrimination in International Human Rights Law, 148.
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