PHASE - 1

Pre-Independence – Stirrings to the South of the Narmada

1) MAHARAJA SHAHU RESERVATION SCHEME [1], 1902
The Pendulum Swings Left

Influenced by Jyotirao Phule's Satya Shodhak Samaj, and issued via a notification in the Kolhapur State Gazette, this is widely regarded as one of the earliest instances of affirmative action/reservation in modern India.

...to encourage the backward classes (varnas) of the government’s subjects to opt for higher education, His Highness has decided that a higher portion of the princely state’s employment opportunities should be kept aside for these classes. In this regard, His Highness orders that, of all the seats that go vacant from the date of this proclamation, 50% should be filled with the backward classes. In all the offices where backward class employees number less than 50%, all the next appointments should go to the backward classes. 

2) MAHARAJA NALWADI KRISHNARAJA WADIYAR IV & SIR LESLIE C. MILLER RESERVATION SCHEME [2], 1921
The Pendulum Swings Left (with some verbal concessions to the center)

Under pressure from the Praja Mitra Mandali and pushed through in spite of Dewan M. Visvesvaraya resigning in protest, reservations under this proposal were based on the Miller Committee report. Quotas were raised within seven years to 50% in higher offices and 66% in lower offices.

It has always been my earnest desire to see all classes of my subjects represented in just proportion in public service. The preponderance of the Brahmins in the Government service is due to inevitable causes and I feel convinced that time and the spread of education and enlightenment will gradually remove the inequality of which you rightly complain. At the same time I must tell you that it is far from my desire that any community should in any way be penalised on account of its caste simply because it has worked hard and utilised fully the opportunities for advancement which are open to all my subjects.

3) JUSTICE PARTY GOVERNMENT OF RAJA OF PANAGAL’S ORIGINAL MADRAS PRESIDENCY COMMUNAL G.O.[3], 1921
The Pendulum Swings Left

What came to be known as the first communal GO (government order) was passed by the Madras Presidency government under the Raja of Panagal, founder of the Justice Party. It provided for reservation of 44% jobs for non-brahmins, 16% for brahmins, 16% for muslims, 16% for Anglo-Indians and Christians and 8% for scheduled castes. 

In order to increase the proportion of posts held in Government offices held by non-Brahmans, the Government direct that the principle prescribed for the Revenue Department… should be extended to appointments of all grades in the several departments of Governments.

4) TRAVANCORE COMMUNAL RESERVATION ORDER[4], 1936
The Pendulum Swings Left

Following decades of pressure from Nairs, Ezhavas, Muslims and Christians leading up to the Nivarthana Agitation, Maharaja Chithira Thirunal Balarama Varma introduced a reservation policy for government jobs.

...with Ezhavas, Muslims and certain sections of Christians demanding representation in the legislature and in government service in proportion to their numerical strength… As a result of several such demands and agitations, communal reservation was first introduced in Travancore on June 14, 1936, with a quota being fixed for each community on the basis of its numerical strength.

PHASE - 2

Post-Independence – Gathering Steam in the Deccan and the Carnatic

5) STATE OF MADRAS ORDER – UPDATE OF THE COMMUNAL G.O.[5], 1948
The Pendulum Swings Left

The original Justice Party Communal GO of 1921-1927 for reservations in government jobs was updated by the Congress government led by Chief Minister Omandur Ramaswamy Reddiar, to include communal reservations in educational institutions.

With regard to admission of students to the Engineering and  Medical Colleges of the State, the Province of Madras had issued an order (known as the Communal G. O.) that seats should be filled in by the selection committee strictly on the following basis, i.e., out of every 14 seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2 to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian Christians and 1 to Muslims.

6) STATE OF MADRAS VS CHAMPAKAM DORAIRAJAN [6], 1951
The Pendulum Swings Right

A private writ petition was filed by Shrimati Champakam Dorairajan contesting the Communal GO of 1948 on the basis that discrimination by the State on the basis of her caste during medical college admissions was a violation of her Fundamental Rights. 

Held by the Full Court that the Communal G.O. constituted a violation of the fundamental right guaranteed to the citizens of India by Art. 29 (2) of the Constitution, namely, that "no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language  or any of them and was therefore void under Art. 13.

The directive principles of State policy laid down in Part IV  the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand they have to conform to and run as subsidiary to the fundamental rights laid down in Part III.

{This is in fact where most of us are with regard to these matters. Most ordinary folk believe that some reservations are fine, but they should not become a fundamental or permanent feature of state policy. They also believe that the Directive Principles should stay subsidiary to the Fundamental Rights that foreground Liberty and Natural Law in a liberal democracy.

We will see that this sentiment is not so obvious within the establishment, and each passing decade after 1951, political pressure has slowly but inexorably pushed (though not always in a straight line) in the direction of Articles 38, 40 & 342 over-riding Articles 14, 15 & 29 and especially Art 13 which declares the primacy of the Fundamental Rights in case of any conflict.}

7) THE FIRST AMENDMENT [7], 1951
The Pendulum Swings Left

Responding to the judicial verdict in State of Madras vs Champakam Dorairajan, Prime Minister Jawarharlal Nehru championed the First Amendment to the Constitution arguing that the Constitution's original text hindered Social Justice measures including affirmative action, land redistribution, speech restrictions for public order etc.

“Art 15 Clause (4)
Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” 

8) TRAVANCORE-COCHIN COMMUNAL RESERVATION ORDER/COMMITTEE REPORT [8], 1952
The Pendulum Swings Left

Updating the 1936 pre-independence reservation policy, the Travancore-Cochin state fixed quotas for different groups, including Muslims and Christians and Hindu converts. Unlike other states which preferred to read ‘backward classes’ as purely referring to ‘socially and educationally backward Hindu castes’, Kerala’s reading of the phrase was in fact more accurate and included all backward communities including non-Hindus.

In 1952, on the basis of a committee report, this quota system was replaced by a system of communal reservation in the Travancore-Cochin State. Reservation was fixed at 45 per cent, out of which 10 per cent was set apart for the Scheduled Castes and the Scheduled Tribes, and 35 per cent for Other Backward Classes (OBCs), which included Ezhavas, Muslims, Kammalas, Hindu Nadars, Nadar Christians (belonging to the South Indian United Church), Latin Catholics, and Other Hindus and Other Christians (S.C.s and OBCs who converted to Christianity).

9) CARRY FORWARD RULE [9], 1952 & 1955
The Pendulum Swings Left

Issued as Supplementary Instructions by the Government of India, these rules and the modifications in 1955 allowed vacant reserved positions for SC/ST candidates to be carried forward to subsequent years ultimately resulting in a 65% reservation within a decade.

...if a Scheduled Castes candidate cannot be recruited against an unreserved vacancy later in the year, the reservation should be carried forward to the following year and after the Scheduled Castes quota for the latter year has been filled, the first unreserved vacancy in that year [...] should be treated as reserved for Scheduled Castes.

10) THE KAKA KALELKAR BACKWARD CLASSES COMMISSION [10], 1955

The Pendulum Swings Left

The First Backward Classes Commission headed by Kaka Kalelkar was appointed by President Dr. Rajendra Prasad under the urging of Prime Minister Jawaharlal Nehru’s Cabinet. In these excerpts from the report, we see the full trajectory of Kalelkar’s intellectual journey.

They are too backward to be introspective and to find out what is wrong with themselves. It is but natural and to some extent justifiable that they should find fault with the situation around them, and their eyes should be reverted on the fact of their being exploited by the upper classes. Their representatives and leaders have read the literature that we evolved in finding faults with the evils of the British rule. They have come to know how one race dominates another, and how those who have to suffer have, perforce, to unite against the forces of vested interests. They have heard of the inevitability of class conflict. No wonder if they are prone to draw hasty conclusions. 

We have to recognize the painful fact that all the efforts of the social reformers belonging to the upper classes have been more than counter- balanced by the blind-selfishness and traditional self-justification of the upper classes. There is an amount of uneasiness amongst the backward classes. This has been carefully fanned and organized by interested persons who stand to gain both materially and in leadership by organizing discontent.

I would plead, therefore, that the case of the backward classes need not be analysed too critically, and it is no use marshalling evidence to prove that the accusations levelled at the upper classes by the backward classes are not substantially correct, and that is only interested representatives that distort the situation. Even conceding that the whole picture is one-sided and over-drawn, one has to recognize that there is an uneasiness in the minds of the masses, and this uneasiness is gathering momentum. 

It is unfortunate that the Swaraj Government which is struggling hard to establish social justice has been left to atone for the blind and conservative attitude and the traditional policy of the upper classes, with the result that even though Government is prompted with the best of motives, little credit is given to it, and all the evils of the social system are levelled at it. It would be well if representatives of the backward classes remembered that whatever good they find in the Constitution and the liberal policy of the Government is the result of the awakened conscience of the upper classes themselves. Whatever the Government is doing by way of atonement is readily accepted and acclaimed by the nation as a whole. And let it not be forgotten that the upper classes have contributed their share in formulating the policies of the Government. Removal of untouchability, establishment of equality and social justice, special consideration for the backward classes-all these elements found their place in the Constitution without a single dissentient voice from the upper classes.

We have found it inevitable to attribute most of the evils of our social condition to caste. We are not blind to the good intentions and wisdom of our ancestors who built the caste structure. It was, perhaps, the only way through which they could teach the nation to forget and rise above racial, clannish, tribal and similar biological groupings of society and to accept a workable arrangement of social existence based on cultural hierarchy and occupational self-government. 

National solidarity demands that in a democratic set up Government recognize only two ends-the individual at one end and the nation as a whole at the other-and that nothing should be encouraged to organize itself in between these two ends to the detriment of the freedom of the individual and solidarity of the nation All communal and denominational organizations and groupings of lesser and narrower units have to be watched carefully so that they do not jeopardise the national solidarity and do not weaken the efforts of the nation to serve all the various elements in the body politic with equity.

“Being convinced that the upper castes among the Hindus have to atone for the neglect of which they were guilty towards the "lower" classes, I was prepared to recommend to Government that all special help should be given only to the backward classes and even the poor and the deserving among the upper classes may be safely kept out from the benefit of this special help. My eyes were however opened to the dangers of suggesting remedies on caste basis when I discovered that it is going to have a most unhealthy effect on the Muslim and Christian sections of the nation. It is a patent fact that the bulk of the Muslims and Christians in India are converts from the Hindu fold. This conversion was encouraged by the fact that Islam and Christianity were fundamentally opposed to caste. The "lower castes" in the Hindu fold left their traditional religion and joined the religion of the ruling race because they felt assured that in that way they would be free from the tyranny of caste and caste prejudices.”  

This painful realization came to me almost towards the end of our labours. I could not stem the current of opinion within the Commission itself and ultimately decided, though reluctantly, to side with the majority with whom I had co-operated throughout in formulating remedies on caste basis. It is only when the Report was being finalised that I started thinking anew and found that backwardness could be tackled on a basis or a number of bases other than that of caste. I only succeeded in raising the suspicion of the majority of my colleagues, that I was trying to torpedo the recommendations of the Commission. This was another reason why I signed the report without even a minute of dissent. We must be able to help both Indian Christians and Muslims without their being driven to accept the fissiparous principle of caste. This will also enable us to remove the bitterness which the extremely poor and helpless amongst the upper class Hindus feel that they are being victimised for no fault of their own. Once we eschew the principle of caste, it will be possible to help the extremely poor and deserving from all communities. Care of course must be taken to give preference to those who come from the traditionally neglected social classes.

But now all burden is sought to be thrown on the common exchequer and those who have thoughtlessly neglected education in the past are now seeking preferential treatment in Government services. This is anything but fair.

A general formula of helping all persons, to whatever caste or community they may belong, provided they belong to the special backward class of the extremely poor, covers such cases of extremely poor, who have been cruelly neglected by their own community. Families whose income is less than Rs. 800/- a year do need special help irrespective of the community to which they belong.

I am definitely against reservation in Government Services for any community for the simple reason that the services are not meant for the servants but they are meant for the service of society as a whole. Administration must have the services of the best men available in the land and these may be found in all communities.

11) JAWAHARLAL NEHRU REJECTING KAKA KALELKAR’S REPORT [11],  1961

The Pendulum Swings Right

Though he was the person responsible for the First Amendment and it was he who set the commission’s ball rolling, the results were apparently not to his liking. Being of a European bent of mind, the conflation of caste with class in the Kalelkar report (even though Kalelkar himself was not convinced), did not sit well with the first prime minister and he comes out forcefully, in this letter to the Chief Ministers, in favour of merit based metrics for service appointments. Unfortunately, his call to create high quality primary education never took off which ultimately led to the unraveling of this particular vision.

I have referred above to efficiency and to our getting out of our traditional ruts. This necessitates our getting out of the old habit of reservations and particular privileges being given to this caste or that group. The recent meeting we held here, at which the Chief Ministers were present, to consider national integration, laid down that help should be given on economic considerations and not on caste. It is true that we are tied up with certain rules and conventions about helping the scheduled castes and tribes. They deserve help but, even so, I dislike any kind of reservation, more particularly in Services. I react strongly against anything which leads to inefficiency and second rate standards. I want my country to be a first class country in everything. The moment we encourage the second rate, we are lost.

The only real way to help a backward group is to give opportunities of good education, this including technical education which is becoming more and more important. Everything else is provision of some kind of crutches which do not add to the strength or health of the body. We have made recently two decisions which are very important: one is, universal free elementary education, that is the base; and the second is scholarships on a very wide scale at every grade of education to bright boys and girls, and this applies not merely to literary education, but, much more so, to technical, scientific and medical training. I lay stress on the bright and able boys and girls because it is only they who will raise our standards. I have no doubt that there is a vast reservoir of potential talent in this country if only we can give it opportunity.

But if we go in for reservations on communal and caste basis, we swamp the bright and able people and remain second rate or third rate. I am grieved to learn of how far this business of reservation has gone based on communal considerations. It has amazed me to learn that even promotions are based sometimes on communal or caste considerations. This way lies not only folly, but disaster. Let us help the backward groups by all means, but never at the cost of efficiency. How are we going to build our public sector or indeed any sector with second rate people?

12) MYSORE GOVERNMENT ORDER[12], 1958
The Pendulum Swings Left

Continuing on from pre-independence reservation schemes, the Mysore State Congress party Chief Minister, S. Nijalingappa, pushed reservations for all non-Brahmin communities in educational institutions up to 75%. 

all the communities excepting the Brahmin community, fell within the definition of educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and 75% of seats in educational institutions were reserved for  them.

Similar orders reserving seats were issued in 1959, 1959, 1960 and 1961

On  July 31, 1962, the State of Mysore passed another order which superseded all previous orders made by the State under Art. 15 (4) for reservation of seats. Under that order, the backward classes were divided into two categories, backward classes and more backward classes.  The order reserved 68% of the seats in the engineering and medical colleges and other technical institutions for the educationally and socially backward classes and Scheduled Castes and Scheduled Tribes, and left only 32 per cent seats for the merit pool.

13) M.R.BALAJI AND OTHERS VS. STATE OF MYSORE [13], 1962
The Pendulum Hangs Center

A total of 23 petitioners petitioned the Supreme Court via a writ petition seeking to overturn the earlier Mysore GO of 1958 claiming that their Fundamental Rights had been trampled upon by the government discriminating against them in the matter of college admissions based on their caste. The Supreme Court quashed the Mysore GO and set the reservation limit to 50% while insisting that caste alone can’t be a metric to decide backwardness.

The backwardness under Art. 15 (4) must be social and educational. It is not either social or educational, but it is both social and educational. Though caste in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or dominant test.

While making adequate reservation under Art. 16 (4), care should be taken not to provide for unreasonable, excessive or extravagant reservation because that would by eliminating general competition in a large field and by creating widespread dissatisfaction among the employees,  materially affect their efficiency. Like the special provision improperly made under Art. 15 (4), reservation made under Art. 16 (4) beyond the permissible and legitimate limits is a fraud on the Constitution.

The interests of weaker sections of society, which are a first charge on the States and the Centre,  have to be adjusted with the interests of the community as a whole. Speaking generally and in a broad way, a special provision should be less than 50%.

14) T. DEVADASAN V. UNION OF INDIA[14], 1964
The Pendulum Swings Right

T. Devadasan, an Assistant in Grade IV of the Central Secretariat Service, challenged the 1955 Carry Forward Rule, arguing that excessive carry-forward of SC reservations violated his Fundamental Right to equality of opportunity in public employment under Article 16(1) of the Constitution. His writ petition resulted in the Supreme Court striking down the 1955 Carry Forward Rule.

But if a provision which is in the nature of an exception completely excludes the rest of the society that clearly is outside the scope of Art. 15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4) the Constitution -intended to provide that where the advancement of the Backward Classes of the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored.

The learned Judge traced the history of the order, considered all the relevant circumstances and held that reservation of 68 per centum in the circumstances of the case was a fraud on the constitutional power conferred on the State by Art. 15(4)  of the Constitution.

15) L.G.HAVANUR KARNATAKA BACKWARD CLASSES REPORT [15], 1975
The Pendulum Swings Left

The First Karnataka Backward Classes Commission was set in motion by the Congress Chief Minister D. Devaraj Urs in 1972 via a government order. L.G.Havanur tabled the final report in 1975 and Devaraj Urs praised the report as the "Bible of Backward Classes," inducting L.G. Havanur into his cabinet as Law/Social Welfare Minister. In this report, we see the full scope of L.G.Havanur’s thought processes that guided his efforts.

All these years, identification of castes and communities as backward classes on the principle of caste was assailed by a storm of criticism by the advanced classes, and now their specification by caste and community names is being assailed by the same advanced classes. So sweeping has been the criticism and condemnation, which is like a running cricket commentary, that innocent and gullible backward classes who do not know the masquerading techniques of the advanced sections, have been made to believe that it is an offence to get themselves uplifted.

“Some people suggested for rejecting religion and caste for the determination of backward classes, but in their suggestion I found their confession to perpetuate injustice on the backward classes on the very grounds of religion and caste. I think it is less discriminatory, or no discrimination, in rejecting the vested rights of the so called meritted individuals of the advanced classes than rejecting the legitimate claims of the backward classes on grounds of religion and caste to have their due share in all walks of life.”

“Caste has come to stay. One who knows the relevant aspects of our Constitution is bound to believe that, apart from Art. 17 which abolished practice of untouchability, no principle exists in it which abolishes or tends to abolish the institution of caste. There is no provision in the Constitution for abolishing the caste system, and if and when the system is abolished, the contents of our Constitution and other laws will be reduced to one-half of what they are to-day.”

“Lack of caste- or communal-consciousness in the backward classes has prevented them from organising themselves with a cohesive strength and gaining training for an effective confrontation with traditionalism and superstitions.”

“Every one reveres his religion, and a Hindu, besides revering his religion, loves his caste. And so, everybody is bound to be parochial in practice, though outwardly in his speech he tries to project himself as a detached cosmopolitan.”

“Language of the Constitution, in so far as it relates to backward classes, is simple and unambiguous. But the language of the judiciary in interpreting the Constitutional provisions is highly ambiguous and complicated. In giving meaning to the expression 'backward classes', in suggesting the criteria for social and educational backwardness and in prescribing a maximum extent of reservation, judiciary did not assign reasons based on sufficient relevant material.”

“They have turned Arts. 15(4) and 16(4) odourless by infusing strong confusion in them, while at the same time instilling hope in the backward classes to find flavour in their judgments. Indeed many of the judicial pronouncements on backward classes are not great by reason of their intrinsic importance, but they are called great because of the over-whelming interest shown by those whose vested rights (iv) are either protected or affected. Such pronouncements have made the Constitutional provisions ambiguous which are clear. There is nothing that one should more deprecate than the judiciary imposing restriction as to the extent of reservation below 50 per cent. By so restricting the extent of reservation, judiciary has gone beyond the language of Arts. 15(4) and 16(4) thus preventing the State from making adequate reservation that a large population constituting the 'backward classes' deservedly desires.”

“Whatever may be the opinions of eminent persons on equal treatment clauses of our Constitution, there can be no doubt that their scope embraces the fundamental principle of discriminatory and protective treatment in favour of backward classes on the ground of their caste.”

“The concept of equality under our Constitution is not absolute in terms, but it is circumscribed by limitations. The reason is, in an unequal society such as ours, the principle of equality is violated if it is applied in its absolute sense. The rule of equality could be applied to those castes which are similarly circumstanced. Equality means equal treatment of equal castes. Classification for legal purposes on the ground of caste differences is the essence of equality.”

“Privileges in any form are symbols of inequality. And privileges to some castes only are indicators of unjust society. Removal of privileges or their proportionate distribution amongst all castes is justice which equality aims to secure. Distributive justice satisfies the rule of equality.”

“Lower castes cannot produce equal results without compensatory measures protecting them from discrimination. Protesting against protective discrimination amounts to an ideal of maintaining inequality.”

He extensively and uncritically quotes Kalvekar (not Kaka Kalelkar) -

Brahmins were mainly responsible for the British East India Company to come to prominence and this further resulted in dividing the whole of South India into two main Presidencies-the Bombay and the Madras Presidencies, which were formerly under one empire, i.e., Maratha Empire. The Bombay and Madras Presidencies under the British rule were very much influenced by each other in respect of political history, as they had come under the same Brahminical influence.

The Brahmins regarded themselves as the governing class, enjoying all advantages, and harassed the poor and toiling masses. They were all in all-landlords, agriculturists, white collars and, above all, professional caste-lords. They seized everything from the peasants, in one or the other way, their reign was a reign of terror and despotism and they never 'tolerated any reform in the existing caste system.

British rule in India helped Brahminism to become more dominant in economic, political and social life of India again. Suffering with hunger and suppression, the lower classes of society in the South were economically handicapped. It was virtually slavery that existed and this was continued since thousands of years. In the same religion the upper caste had divided the society to such an extent that it resulted in slavery. The divisions and separations, which took place because of Brahminisation, had affected social conditions to such an extent that if one caste or Jathi was being tortured, or being subjected to severe discriminations, the other castes Two did not unite over the issue, but instead, enjoyed seeing the suppressions and tortures. Under such conditions, the upper castes have always made themselves the masters of all situations.

The Brahmins had always shown a clear apathy for mass education. ‘Western education and liberal ideas reached the masses through Christian missionaries.’ Kalvekar states ‘No wonder, the non-Brahmin movement was the natural outcome of all these sufferings.’ 

15A) JURISTS SEMINAR ON BACKWARD CLASSES [15A], 1973
The Pendulum Swings mostly Left & sometimes Hangs Center

These speeches were delivered the year following the appointment of the Havanur Commission. They give us a sense of the mood of the legal intelligentsia and reveal to us the various flavours of their opinions.

Prof. M. D. Nanjundaswamy, Professor of Law, B.M.S. College of Law, Bangalore

The justification for this Seminar is the fact that a casteless and a classless society is still a far away dream. This dream has been refusing to become a reality because caste, in reality, has always been freezing and not un-freezing.

This is so because, caste has been the most overwhelming factor in Indian life. Those who deny caste in principle also accept it in practice. Life moves within the frontiers of caste and cultured men speak in soft tones against the system of caste, while its rejection in action just does not occur to them. If they are reminded of their acts, which are in such unbelievable conformity with caste, they point out with indignation their thought and speech Who knows if this strange split between thought and action, characteristic of Indian culture more than of any other, is not the result of caste.

The split between thought and action is the very reason why the Indians are the saddest on earth, also the poorest and the most diseased. With such denouncers of caste and upholders of the nation, a general atmosphere of fraud prevails. For them, to protect castemen and relations becomes an aim rather than to protect justice and general well-being. In essence the needs of caste are at war with those of the nation,

Numerically small castes of most superior skills are the habitual providers of nation’s leadership. In order to maintain their most unnatural dominance, they become a seething mass of chicanery, but surfacially most smooth and cultured. The masses are lifeless, the elite are chicane. Caste has done that.

He then quotes from Lohia’s Caste System -

The process of shrinking of ability and opportunity once started went on indefinitely with the result that certain privileged castes acquired more privileges while the vast majority was continually deprived of them. No other part of the earth has indeed suffered as much from constricted ability and the near death of the nation that, flows from caste. That is the most important reason why the Indian people are so backward.

Justice K. Subba Rao, Former Chief Justice of India

The Indian Constitution has provided for an interesting scheme to uplift the said backward classes, so that they may enter, as early as possible, the main stream of the national life. The Constitution accepted the glorious concept of the doctrine of equality as the foundation of social justice. This doctrine refuses to accept a State in which some men are more equal than others. It recognizes equality between men in society. It is enshrined in Article 14 of our Constitution and under that Article the State shall not deny any person equality before law or equal protection of the laws. It means that everyone is equal before law, that no one can claim special privileges, and that all people are equal subject to the ordinary laws of land.

But in a society of un-equal basic structure, it is well nigh impossible to make laws suitable in their application to all persons alike. For, men differ physically, intellectually and spiritually. So in order to give practical content to the concept of equality, courts have evolved the doctrine of classification, which permits law to classify persons having regard to the differences between them, provided the said differences are relevant to the objective of the law. There is another aspect to the doctrine of equality. It enjoins on the State to give equal opportunity to every citizen. This is worked out by invoking two principles—(1) Every citizen shall be given equal opportunity to develop his own personality in the way he seeks to do; (2) The State shall give adventitious aids to the under-privileged to face boldly the competition of life. Though the said two principles appear to be conflicting, the harmonious blending of both gives equal opportunity to all citizens to work out their way of life.

Doctrinaire insistence of absolute equality of opportunity leads in practice to inequality, which the doctrine seeks to abolish. The following illustration explains how the combination of the two principles gives equal opportunity to all the citizens. If two horses one of class 1 and the other of class 2 or 3 are made to run a race of one mile starting from the same point, it is obvious that, though theoretically they are given the same opportunity to run the race, in practice, they have not equal opportunity, for 'the latter, compared to the former, is in a disadvantageous position and is doomed to failure even before the race is begun. So in order to given them equal opportunity, either the latter should be given a shorter distance to run or 'the former should be given an handicap to counter-balance the latter’s inferiority. So, too, in the race of life, unless adventitious aids are given to the under-privileged people, it would be impossible to suggest that they have equal opportunity with the more advanced people. This is the reason and the justification for the demand of social justice that the backward classes of the country should be given a preferential treatment in order to give them an equal opportunity with the other more advanced sections of the community.

Prof. A. M. Dharmalingam, Professor of Law, Sri Renukacharya College of Law

Now who are the backwards in the context of Indian society and the spirit of the Constitution? It is never difficult to identify the backward class provided one has the will and the desire to identify the class. The people who were treated as backward classes before the commencement of the Constitution are the very people who are backward after independence. The backward classes cannot change their criteria after the Constitution, nor can any Commission or the judiciary try to find a different and mischievous criteria for the said classes. Almost all the South Indian States had made reservations for the backward classes before independence. Those are the classes referred to in the constitution. They were never before identified as poor people or the workers or peasants. They were all classified on the basis of the social caste strata in the infamous Hindu hierarchical caste system coupled to their poor educational attainments and inadequate representation in the public service.

Backward Classes are therefore, castes which are low in the hierarchic caste scale. They are broadly the whole lot of the intermediate Shudra caste people. Narrowly they are other than the economically dominant upper Shudra castes. By no stretch of the imagination can Brahmins or Vaishyas, though poor or uneducated can be brought into the category of Backward Classes through the illogical economic factor. What is true of the Brahmins will be true of the dominant major Shudra castes.

If the classification of backward classes was based solely on the caste of the citizens, it may not always be logical and may perhaps contain the vice of perpetuating the castes themselves.

The destruction of caste is neither the object of the Constitution. nor a policy of the Government or of any political party.

Great saints and Mahatmas have failed down the ages to destroy caste. Pious wishes, idealistic platform platitudes, judicial obiterdicta take us nowhere.

Inspite of the initial correct approach, the judgment concludes on the wrong economic basis by ruling, If the State Government has decided to afford financial assistance, and make necessary grants to students seeking higher education, where it is shown that the annual income of their families is below a prescribed minimum, it may afford relief to and assist the advancement of the backward classes in the State, because backwardness, social and educational,, is ultimately and primarily due to poverty.

This wrong and illegal identification of the backward class man as the poverty striken individual below a certain income had unfortunately been accepted by the Government of Mysore and worked upon for the last twelve years, and it has inflicted untold hardship and denial of opportunities to the really backward classes.

Social and economic compulsions may be created to encourage intercaste marriages. Proportional reservation is one such. When the upper castes find that their opportunities are limited to their small strength in the population and when the limitation is found in the caste, the youth of the upper castes may first, break the barrier and launch into exogamy.

It should not be forgotten that merit obtained by the few by deliberate denial of opportunities to the mass of the people is not a thing to be proud of. The gulf between the heritage and environment of the upper castes and the heritage and environment of the backwards is poles apart. They admit of no comparison. What is more, comparison is cruel as well. I may not be wrong if I say that ill gotten merit is equivalent to stolen property.

Sri B. P. Kadam, Deputy Speaker, Mysore Legislative Assembly

For the purpose of our discussion, it will not be necessary to go into the details of the Varna system. It is my candid opinion that the Dravidians had a very high civilisation in India and there existed a caste system amongst them. The Aryans, when they entered the sub-continent, were un-civilised but were of superior prowess. They over-powered Dravidians and in that effort were largely influenced by the Dravidians. Such divisions in society did exist in the civilisations of the Egyptians, Greeks and Romans. In India, the caste system whs taken to the extreme by the Aryans.

It is after the advent of Buddhism, the caste barriers were broken. Buddhism was based on reason, mutual self-respect, love and service. Buddhism, rendered great service.

It is true that the import of the word “ Class ” is wider than caste. But in a country like ours, the impact of caste system is so great that it cuts across all barriers. The dictionary meaning of the word “Caste” is “class of persons”. Class is synonymous with caste for the purpose of our discussion.

The living conditions of the backward classes comprising of so many castes are horrible. They have no status, being down-trodden and ignored by our advanced castes. They live a sub-human life without knowing whence 'they could get their next meal. They have no clothes and the condition of their women folk is horrible. The birth of a child is an occasion for grief and sarrow because there is nothing in the house for the mother as well as the new born child for sustenance.

Our Constitution is a means to an end and If it does not serve our social needs, it will have to be suitably amended. If we fail in our duty to wipe the tears from the faces of these oppressed and suppressed people who have been silently suffering under disabilities and living in no way better than animals, there is bound to be a terrific explosion which may blast the entire structure. We have to wash the sin of our forefathers and the only way to wash it is by selfless service with a dedicated missionary spirit.

The theory of inter-caste marriage as a means of national integration is more humurous than reasonable. Inter-caste marriages are bound to come about amongst people of equal status based on economic and cultural standards. This is a evolutionary step which cannot be forced by law, nor by teaching. This will take a long time.

Finally, let me add that the backward castes in other religions like Muslims and Christians who cannot come up on their own with¬ out state’s support will have to be included.

Justice K. R. Gopivallabha Iyengar, Judge, High Court of Mysore (Retd.)

Sri Havanur has made a very great effort to equate the “Classes” used in the several relevant provisions of the Constitution with the word “Castes”. This attempt even if I take is as successful serves no purpose as in my view identifying “Class” with “Caste” is to put the clock back and perpetuate the anachronism which Mahatma Gandhi said must go if India is to live and grow from day to day. It is pertinent to note that this question of caste did not arise during the national struggle. Nobody ever bothered whether a particular national leader was a member of a particular caste or other.

If the makers of the Constitution intended to take ‘ Castes ’ also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and Scheduled Tribes. Though it may be observed that the widest expression “Classes” is used in clause (4) of Art. 15 as there are communities without castes, if the intention was to equate classes with castes nothing prevented the makers of the constitution to use the expression “Backward Classes or Castes. The juxtaposition of the expression “backward classes” and “Scheduled Castes” in Art. 15(4) also leads to a reasonable inference that the expression “Classes” is not synonymous with “Castes

To distribute preferences on the basis of castes would inevitably amount to depriving the advantages to the members of the other castes. This would produce antagonism between one community and another and mutual hostility and disintegrate our society and degrade our country. This would develop a resistance resulting in crystalization of castes which would poison and weaken our society. This at any cost should be avoided.

Justice K. S. Hegde, Former Judge, Supreme Court of India

Advantages secured due to historical reasons cannot be considered as Fundamental Rights guaranteed by the Constitution. Nation’s interest will be best served—taking a long range view—if the backward classes are helped to march-forward and take their place in line with the advanced sections of the people. Feudalism, in any form whatsoever is incompatible with democratic way of life.

No sooner a ‘class’ reaches what is popularly known as the ‘take off ’ stage it should no longer have the benefit of any reservation. Thereafter it will not be in the interest of the Nation or even that of the class in question to continue to rely on artificial support. The best in a person is brought out when there is competition. 

16) STATE OF KERALA v N.M. THOMAS [16], 1976
The Pendulum Swings Left

N.M. Thomas, lower-division clerk in Kerala's Registration Department passed the required departmental test for promotion to upper-division clerk but other reserved candidates were promoted under the rule that they could take the exam at a later date. The High Court struck down the government order. Kerala State appealed to the Supreme Court whose verdict marked a major shift in reservation jurisprudence, shifting from formal equality to substantive equality and allowing affirmative action in promotions for Scheduled Castes and Scheduled Tribes. Equity, for the first time in Supreme Court rulings, began to be seen as inherent to the definition of Equality.

Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits  discrimination without reason. Preferential representation for the backward classes in services with due regard to administrative efficiency is a permissible object and backward classes are a rational classification recognized  by the Constitution. Therefore, differential treatment in standards of selection is within the concept of equality.

POST SCRIPT

The above short history reveals the disparate strands of thought that have contributed to the making of the double helix of Natural Law and Social Justice playing out in our society and nation. Contrary to what many of us believe, none of these ideas are new. Many are at least a century old. They are just brought out of deep-freeze every ten years when political parties feel the need to move the pendulum further left. These ideas include the now familiar tropes of -

1. JAUH – Representational Equality
2. Equality as Equal Opportunity
4. Equality as Distributive Equality
5. Equality as Equity
6. Equity as Equal Outcome
7. Equity as Variable Standards for Admission and Promotion
8. Quotas in Admissions
9. Quotas in Promotions
10. Aryan Invasion Theory
11. Brahmanical Dominance
12. Brahmanical Cunning
12. Caste System Evil - needs annihilation
13. Caste System Useful - but no longer relevant
14. Western System Enlightened – We need to be Reformed
15. Buddhism Good – Hinduism Bad
16. Merit versus Reservations

REFERENCES

1. https://thesatyashodhak.com/what-was-shahu-maharajs-historic-1902-reservation-order/

2.  https://archive.org/details/SpeechesByKrishnarajaWadiyar/page/222/mode/2up?q=earnest

3.  https://www.thehindu.com/news/national/tamil-nadu/a-government-order-that-heralded-the-social-justice-movement-100-years-ago/article36486308.ece

4. https://frontline.thehindu.com/social-issues/article30224191.ece

5. https://indiankanoon.org/doc/149321/

6. https://indiankanoon.org/doc/149321/

7. https://www.constitutionofindia.net/read/

8. https://frontline.thehindu.com/social-issues/article30224191.ece

9. https://www.casemine.com/judgement/in/5767b110e691cb22da6d2196

10. https://socialjustice.gov.in/writereaddata/UploadFile/20201687776663.pdf

11. https://nehruarchive.in/documents/to-chief-ministers-27-june-1961-dwwg7

12. https://indiankanoon.org/doc/599701/

13. https://indiankanoon.org/doc/599701/

14. https://indiankanoon.org/doc/1466728/

15. https://ia802903.us.archive.org/16/items/dli.csl.2681/2681.pdf

15A. https://archive.org/details/dli.csl.2833/page/n51/mode/2up

16. https://indiankanoon.org/doc/1130169/

Note: Read Part 2B Here.