Backward Class Community to remain Backward Class

Ayesha, born in a Hindu family, embraced Islam on November 28, 2005, and in August 2014 she obtained community certificate stating that she belonged to Muslim Labbai community. As per a July 19, 1994 government order, Muslim Labbai is a recognised Backward Community.

She wrote the examination for junior assistant/typist group-IV in December 2014 and scored 153 marks. Though she was called for certificate verification, her application was rejected at verification stage on the ground that she was not eligible for the post as she was not a Muslim by birth. Since no order was passed on her representation explaining her position, she filed petition in the Madras High Court.

Tamil Nadu Public Service Commission in its counter contented that, the petitioner Ayesha could have applied only under “others” category where the upper age limit was 30 years. She was aged 32 years, and hence she was not eligible to apply for the post. The counsel of the petitioner said the issue was covered by an order passed by Justice Hariparanthaman in an identical case and added that the woman would be eligible if she is considered Backward Class Muslim and not under open category.

Acceding to the plea, Justice Hariparanthaman said he had passed orders in M U Aariffaa’s case, which is similar to Ayesha’s case, after referring to various Supreme Court rulings. Court then asked Tamil Nadu Public Service Commission to treat Ayesha as a Backward Class Muslim candidate and consider her for a post.

After considering the plea of both the parties Honourable High Court of Madras on held that a Hindu Backward Class person, who embraces Islam, shall be considered as BC Muslim. Justice D Hariparanthaman of the High Court of Madras passed the order and directed Tamil Nadu Public Service Commission to accept the application of R Ayesha, who embraced Islam in 2005 and applied for a typist’s post in 2014, as a Backward Class Muslim candidate.

Reservation in Promotion of Scheduled Caste/Scheduled Tribe in Administrative Services

Author: Prashant Mishra, New Law College, Bharati Vidyapeeth Deemed University, Pune

India is developing into a prosperous industrialized nation yet it lacks proper governance. It has tremendous amount of skilled and unskilled manpower, all kinds of raw materials, an appropriate legal system, a huge market and is a heaven for consumers. Only the government should concentrate on the real basic issues and not on the peripheral, or the abstract ones. The civil services are the backbone of proper governance and should have the best and the most talented people.

British Prime Minister, Lloyd George on August 2, 1922 stated it very clearly in the House of Commons that British civil servants were the very basis of the Empire in India and so he could not imagine any period, when they could dispense with the guidance and assistance of a small nucleus of the British civil servants. He said, “I do not care, what you build on it, if you take that Steel-frame out of the fabric, it will collapse. There is only one institution, we will not cripple, there is one institution, and we will not deprive it of its functions or of its privileges and that is that institution, which built up the British Raj – the British Civil Service in India ((Available at http://samaj.revues.org/633?&id=633#ftn1 last accessed on July 4, 2013)).”

Thus, the crucial and important role of administrative Services, in managing different activities in various spheres all over India is evident. Britisher’s designed the reservation Policy. They divided the Indian population into different groups, based on caste, community, religion, etc. They fixed ‘quota’ in government jobs for different communities of Indian Society, through the Acts of 1909, 1919 and1932 along with separate representation in Legislative Councils, and Assemblies, the rulers bestowed special benefits and preferences in education and Government jobs for different upcoming groups.

It was Justice Leslie C Miller, the then Chief Judge of Mysore Chief Court and Chairman, 1st Backward Class Committee of Mysore, who for the first time officially introduced the Policy of Reservation in government jobs in 1919 ((K.C. Vasanth Kumar & Anothervs. State Of Karnataka1985 AIR 1495)).

The employment in Government organization was, from the very beginning considered lucrative and prestigious for all the educated Indians. At that time itself, one of the members of the Miller Committee, Mr. Iyengar rejected most of the recommendations on the ground that any Reservation would harm efficiency of administration by preventing persons with merit from joining the services. However, the British Government gave preferential treatment to upcoming groups in government jobs, but they kept the ICS untouched from the quota system till the last. They firmly and clearly said to the upcoming groups that they wouldn’t weaken their Steel frame at any cost for anybody, as on it depended, the efficient governance of the country. They told the upcoming groups in clear terms, “With its utmost desire to do so, the best for these classes, the Government will be and is powerless to help them, unless they qualify themselves to the same extent as others of their countrymen for duties of administration and public ((Times of India Archives, May3, 1918)).

VIEWS OF THE FOREFATHERS OF THE CONSTITUTION

The men who drafted the Constitution realized importance of civil services in ensuring good governance to the country and providing the safety of the nation.

Mr. Subharajan said during Constituent Assembly debates, “Without an efficient civil service, it would be impossible for the Government to carry on and continuity to be kept. The importance of the Governmental administration has been in fact that there is continuity and unless there is continuity, there is chaos ((Constituent Assembly Debates, Vol. IX, p 952)).”

Mr. M.V. Kamath said, “With the independence of our country, the responsibilities of the services have become onerous. It may make or mar the efficiency of the machinery of administration, machinery so vital for the peace and progress of the country. A country without any efficient Government service cannot make progress in spite of the earnestness of the people at the helm of affairs of the country. Whatever democratic institutions exist, experience has shown that it is essential to protect public services as far as possible from political and personal influence and to give it that position of stability and security, which is vital in its successful working, as an impartial and efficient instrument, by which Government of whatever political complexion may give effect to their policies ((Ibid at p 585)).”

Vallabh Bhai Patel: “I need hardly emphasize, that an efficient, disciplined and contented (civil) service, assured of its prospects as a result of diligent and honest work, is a “Sine qua non” of sound administration, under a democratic regime, even more than under an authoritarian rule. The (civil) service must be above party and we should ensure that political consideration, in either its recruitment or its discipline and control, are reduced to the minimum, if not eliminated altogether ((Dr. Chandrakant. Devappa , SardarVallabhai Patel and Indian Polity : Golden Research Thoughts (Feb ; 2012).)).”

After Nehru’s midnight hour speech between 14th and 15th August 1947, Dr. Radhakrishnan warned the nation, “Our opportunities are great, but let me warn you that when power outstrips ability, we will fall on evil days. We should develop competence and ability, which would help us to utilize the opportunities, which are now open to us. A free India will be judged by the way, in which it will serve the interests of the common man in the matter of food, clothing, shelter and social services ((Radhakrishnan: His Life and Ideas – Page 116)).”

During the Constituent Assembly Debates it was insisted that efficiency in administration is a necessity and it should be an efficient impartial services, it was hoped, that after ten years, or so, there would be no need for Reservation.

Mr. M.V.Kamath, on October 14, 1949, said, “Members and even friends outside may dispute the wisdom of this course (Reservations for SC/ST)…. I only wish to express the hope that before ten years has expired from the commencement of the Constitution…. there will be not merely no socially and educationally backward classes left, but that all the classes will come up to a decent normal human level, and also that we shall do away with this stigma of any caste being, scheduled, this was the creation of British regime, which happily has passed away ((Constituent Assembly Debates, Vol. X, p 242-43)).” It was the view of many members who drafted the constitution that reservation should be for a limited period only including Dr. Ambedkar. He said – On August, 1949, while defending SC Reservation for ten years, “For the scheduled tribes, I am prepared to give far longer time, but all those, who have spoken about the reservation to the SC or to the ST, have been so meticulous that the thing should end by ten years ((P.697)).”

VIEWS OF JUDGES REGARDING RESERVATION

In N.M.Thomas case, Ray C.J. had observed that:

‘The Constitution makes a classification of Scheduled Castes and Scheduled Tribes in numerous provisions and gives a mandate to the State to accord special or favored treatment to them. Article 46 contains a Directive Principle of State policy – fundamental in the governance of the country enjoining the State to promote with special care educational and economic interests of the Scheduled Castes and Scheduled Tribes and to protect them from any social injustice and exploitation. Article 335 enjoins that the claims of the members of the Scheduled Castes and Scheduled Tribes to the services and posts in the Union and the States shall be taken into consideration. Article 338 provides for appointment by the President of a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them under the Constitution. Article 341 enables the President by public notification to specify castes, races or tribes which shall be deemed to be Scheduled Castes in the States and the Union Territories. Article 342 contains provision for similar notification in respect of Scheduled Tribes. Article 366 (24) and (25) defines Scheduled Castes and Scheduled Tribes. The classification by the impugned rule and the orders is with a view to securing adequate representation to Scheduled Castes and Scheduled Tribes in the services of the State as otherwise they would stagnate in the lowest rung of the State services ((State of Kerala Vs. N.M.Thomas, AIR 1976 SC 490)).

In the same case Fajal Ali J. also observed that:

‘In view of these provisions the members of the Scheduled castes and the scheduled tribes have been given a special status in the Constitution and they constitute a class by themselves. That being the position it follows that they do not fall within the purview of Article 16(2) of the Constitution, which prohibits discrimination between the members of the same caste. If, therefore, the members of the scheduled castes and the scheduled tribes are not castes, then it is open to the State to make reasonable classification in order to advance or lift these classes so that they may be able to be properly represented in the services under the State ((State of Kerala Vs. N.M.Thomas, AIR 1976 SC 490)).

In Akhil Bharatiya Shoshit Karmachari Sangh case, Supreme Court held that:

‘The President notifies Scheduled Castes not with reference to any caste characteristics but their abysmal backwardness, as is evident from the scheme of Part XVI. He appoints, under Article 338, a Special Officer whose duty is to investigate into all matters relating to safeguards for the scheduled caste & scheduled tribes. The Constitution provides not merely for adequate representation of scheduled caste & scheduled tribe to services and posts under the Union and States, but also provides for reservation of seats for scheduled caste & scheduled tribe in the Legislatures. The cursory study of the Articles relating to the status and safeguards of scheduled caste & scheduled tribe puts it beyond doubt that the founding fathers have assigned to them a special place and shown towards them special concern and charged the State with special mandates to redeem these handicapped human sectors from their grossly retarded situation. Indeed, they are not merely backward, but are the backward-most and cannot be equated with just any other caste in the Hindu fold ((Akhi lBharatiya Shoshit Karmachari Sangh Vs. U.O.I., AIR 1981 SC298)).

Justice Sahai in Indra Sawhney Case observed that:

“Backward used in Article 16(4)is wider than socially and educationally used in Article 15(4) and weaker sections used in Article 46. Scheduled caste & Scheduled tribe are covered in either expression. However, same cannot be said for others. Backward, cannot be defined as was, wisely, done by the Constitution makers. It has to emerge as a result of interaction of social and economic forces. It cannot be static. Many of those who were Sudras in 17th and 18th Centuries ceased to be so in 19th and 20th Century due to their educational advancement and social acceptability. Members of various backward communities, both, in South and North who were moving upwards even before 1950 compare no less in education, status, economic advancement or political achievement with any other class in society ((Indra Sawhney Vs. U.O.I. (1992) Supp. 3 SCC 217)).”
In Devdasan, Justice Subba Rao explained the meaning of equality of opportunity in Article 16 as follows:

“Article 14 lays down the general rule of equality. Article 16 is an instance of the application of the general rule with special reference to opportunity of appointments under the State. It says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. If it stood alone all the backward communities would go to the wall in a society of uneven basic social structure; the said rule of equality would remain only a utopian conception unless a practical content was given to it. Its strict enforcement brings about the very situation it seeks to avoid. To make my point clear, take the illustration of a horse race. Two horses are set down to run a race – one is a first class race horse and the other the ordinary one. Both are made to run from the same starting point. Though theoretically they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal opportunity to compete with the race horse. Indeed, that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, what would otherwise have been a farce of a competition would be made a real one. The same difficulty had confronted the makers of the Constitution at the time it was made. Centuries of calculate oppression and habitual submission reduced a considerable section of our community to a life of serfdom. It would be well highly impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of competition without adventitious aids till such time when they could stand on their own legs ((T.Devdasan Vs. U.O.I. AIR 1964 SC 179)).

In Triloki Nath, the Supreme Court laid down that:

Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. But if the said clauses of the article are literally enforced, instead of giving equality of opportunity to all citizens, it will lead to glaring inequalities. In a country where there are different strata of society ranging from highly sophisticated to lowly backward, the concept of equality will drive the latter to the wall. Their condition would become worse than what it is. So, in order to give a real opportunity to them to compete with the better placed people, clauses (3) and (4) are introduced in the article ((Triloki Nath Vs. State of J and K., AIR 1967 SC 1283)).

In Thomas case Justice Mathew declared that:

I agree that Article 16(4) is capable of being interpreted as an exception to Article 16(1) if the equality of opportunity visualized in Article 16(1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of Scheduled Castes and Scheduled Tribes. If equality of opportunity guaranteed under Article 16(1) means effective material equality, then Article 16(4) is not an exception to Article 16(1). It is only an emphatic way of putting the extent to which equality of opportunity could be carried viz., even up-to the point of making reservation ((State of Kerala Vs. N.M.Thomas, AIR 1976 SC 490)).

In Akhil Bharatiya Shoshit Karmachari Sangh case, Justice Chinnappa Reddy expounded that:

“Article 16(4) is not in the nature of an exception to Article 16(1). It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with special reference to an under privileged and deprived class of citizens to when egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality). It is illustrative of what the State must do to wipe out the distinction between egalite de droit and egalite de fait. It recognizes that the right to equality of opportunity includes the right of the underprivileged to conditions comparable to or compensatory of those enjoyed by the privileged. Equality of opportunity must be such as to yield ‘Equality of Results’ and not that which simply enables people, socially and economically better placed, to win against the less fortunate, even when the competition is itself otherwise equitable. John Rawls in ‘A Theory of Justice’ demands the priority of equality in a distributive sense and the setting up of the Social System “so that no one gains or losses from his arbitrary place in the distribution of natural assets or his own initial position in society without giving or receiving compensatory advantages in return”. His basic principle of social justice is: “All social primary goods-liberty and opportunity, income and wealth, and the bases of self-respect-are to be distributed equally unless an unequal distribution of any or all these goods is to the advantage of the least favored”. One of the essential elements of his conception of social justice is what he calls the principle of redress: “This is the principle that undeserved inequalities call for redress; and since inequalities of birth and natural endowment are undeserved, these inequalities are somehow to be compensated for”. Society must, therefore, treat more favorably those with fewer native assets and those born into less favorable social positions. If the statement that ‘Equality of opportunity must yield Equality of Results’ and if the fulfillment of Articles 16(1) in Article 16(4) ever needed a philosophical foundation it is furnished by Rawls’ Theory of Justice and the Redress Principle ((Akhil Bharatiya Shoshit Karmachari Sangh Vs. U.O.I., AIR 1981 SC 298)).”

EFFECT AND RESULT OF RESERVATION

However, when many of the old visionary leaders vanished from the national politics, political climate at provincial level changed. Many regional political parties emerged in the states, pursuing the sectional interests of different groups of people.

Since then, every time before general elections, almost all political parties especially the regional ones constantly advocate for some additional benefits to be given to one group or the other just to garner votes or to create a permanent vote-bank. Reservation Policy has become an inseparable part of the political wisdom of the day. No political party is confident enough to move even a step without the crutches of “Reservation Policy”. Such a mindset has attacked the very foundation of the constitution and has harmed national integration.

Not only Nehru, but Ambedkar, the undisputed leader of untouchables himself declared in a speech sometime before his death that the provision of Reservation in service should not extend beyond 1960/61 ((Indian Express, Dated September 14,1990)). Dr. Ambedkar later in life also believed that Policy of Reservation had “Encouraged backwardness, inefficiency and lack of competitive merit among them barring a few stray cases ((Balraj Madhok, Aryan Heritage,May 1985)).”

Time limit was given for reservation, yet it seems its forever and even Dr. Ambedkar towards the end of his life was unhappy about reservation policy! Have it should be modified or discontinued? During his last days,Dr.Ambedkar was a depressed-man saying, “I have not been able to fulfill my mission”. … “My own people have deceived me. Whatever I have been able to do, is being enjoyed by the educated people and they are the worst fools. I now want to divert my attention to the uneducated masses, but life seems short. The second worry to my mind is that I wanted that somebody from the SC should come forward and take the responsibilities from me. There, however, seems none to shoulder such a heavy responsibility. All are selfish and quarrel amongst themselves on petty matters ((Chandra V and Mowli, B.R Ambedkar – Man and his vision, 1990)).”

Pt. Jawahar Lal Nehru’s view on Reservations in government Jobs:-

As the Prime Minister of India,Pt. Nehru had watched closely all these developments and expressed his views in a letter sent to all the chief ministers of the states on June 27, 1961. Following is the extract of the letter –

“Narrow, cynical, sectional calculations are what propel our politicians today. There was a time when everything was judged by one Talisman alone: the interest of the nation as a whole.”

“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 the help should be givenon economic considerations and not on caste. It is true that we are tied up with certain rules and conventions about helping Scheduled castes and tribes. They deserve help, but even so, Idislike any kind of Reservation, particularly in service. I react strongly againstanything,which leads to inefficiency and second rate standards. I want my country to be 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 for good education. That includes technical education, which is becoming more and more important. Everything else isprovision of some kind of crutches, which do not add to the strength or health of the body.”

“We have made recently two decisions: one is universal and free education, that is the base, and the second is scholarships on a very wide scale at every grade of education to the 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 and talent in this country, only thing we can give it an opportunity.”

“But if 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 on communal considerations. It has annoyed me to learn that even promotions are sometimes based on communal or caste considerations.”

“This way lays 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?”

CRITICISM BY JUDICIARY ON RESERVATION

Judges have also commented on various aspects of Reservation Policy from time to time.

‘In Rangachari case’Justice Gajendra Gadkar has said that:

“It must not be forgotten that the efficiency in administration has such paramount importance, that it would be unwise and impermissible to make any Reservation at the cost of efficiency of administration. That undoubtedly is the affect of Article 335 ((C.S. Devasahayam Vs The Government Of Madras(1968) 2 MLJ 140)).”

In ‘Akhil Bhartiya Soshit Karmachari SanghVs U.O.I’it was held that:

“Special protection under Article 16(4) is not in the nature of an exception. The principles of Art 46 are to be kept in mind, viz. that it is extended to the weaker sections of people. However, the Reservations should not be used to imperil administrative efficiency in the name of concessions to backwardness… Efficiency of administration is bound to be adversely affected, if general candidates of high merit are excluded from recruitment ((Supra at 17)).

Supreme Court in ‘Periakarpan vs. Tamil Nadu’held that:

“All the same, the Government should not proceed on the basis that once a class is considered as a backward class, it should continue to be backward class for all time to come. Such an approach would defeat the very purpose of the reservation.” Therefore, “the list of castes, which are entitled to reservation, must be kept constantly under review ((Periakarpan Vs Tamil Nadu,1971)).”

In ‘Karmachari case’it was stated that:

“If freedom, justice and equal opportunity to unfold one’s own personality belong alike to Bhangi and Brahmin, prince and pauper, if the Panproletariat is to feel the social transformation, Article 16(4) promises, the state must apply equalizing techniques, which will enlarge their opportunities and thereby, progressively diminish the need for props. The success of State action under Article 16(4) consists in the speed, with which result oriented reservation withers away as no longer a need, not in the ever widening and everlasting operation of an exception (Article 16(4)) as if it were a superficial right to continue backward all the time. To lend immortality to the Reservation policy is to defeat its raison’detre. To castefy “Reservation”even beyond the dismal groups of most backward people, euphemistically described as Scheduled caste and Scheduled tribe, is to run a grave constitutional risk. Caste, ipso facto, is not class in a secular state ((Supra at 17)).”

CONCLUSION

Now after a thorough discussion on reservation, its concept, its evolution its need and as well as its effect what I found is that no matter how many classification have been made in the constitution regarding upliftment and betterment of backward class, but what I see first is that the term Backward is no where defined in the Constitution.

The constitution makers while drafting the constitution had acted in their wisdom and so they had left the meaning undefined, to result from interaction of social and economic forces on its own, as time passes.Concept backward is static in nature but the content is dynamic – I strongly feel that.

A society or class which is backward at a particular instance of time may not be so after few years and so it was the hope of the old visionary leaders that this backwardness or inequality will also disappear from our society and we will stand before the world as a single community.

As said by Dr. B.R.Ambedkar….. “We are Indians, firstly & lastly ((available at http://www.ambedkar.org/Babasaheb/quotations.htm last accessed on July 6, 2013)).

But alas! the vision and dream of the old visionaries has failed. The purpose of classification into scheduled caste and scheduled tribe has not achievedits goal. As Vohra Committee has vividly described the nexus that has developed between unscrupulous politicians, corrupt bureaucrats and criminals. The appointment of tainted officers at crucial positions itself makes the intentions of the politicians clear. Corruption and caste-ism has corroded the steel frame.There was a time, when IAS attracted the best talents of the nation.Today’s youth find the work atmosphere suffocating, and have lost their interest in it. Today the efficiency of the service as a whole is at a critical edge where it has lost the faith of people. Thus we can easily conclude that, reservation should be phased out.

But does the issue end here only? By phasing out reservation can we achieve the objective of equality? Can the dreams of our old visionary leaders come true?

The answer I have is in negative because then what will exist in the society will merely be a theory of equality but it will not be practicable. That situation will lead in attaining a situation of rich getting richer and poor getting poorer.

So to address this problem what we first need to think is:

Whether we can have legislation without classification? If not then what should be the basis of classification?
The answer to the question is that Indian society is so diverse in the nature that without classification equality of opportunity cannot be secured, so what we should consider is – what should be the basis of classification? The answer to it is that it should be based on the educational and economical background of the person and not on the factors like caste , religion, and others.
In the end it can be said that Nehru’s dream of making “my country to be first class country in everything” can be fulfilled only when “the bright and able people” are not “swamped”. The moment “we encourage the second rate, we are lost.”

SUGGESTION

Promotions in the service should be strictly based on good performance. Administrative efficiency shouldn’t be compromised at any cost. Classification is an essential element of equality of opportunity in our society but it should be based on real grounds like economical and educational factor and not on peripheral factors.

There is still time for us to change the present system by introducing healthy competition:-

  • By strengthening the foundation of our education system at grass root level,
  • By starting the process of descheduling,
  • By providing maximum facilities at primary education,
  • By curbing corruption and preventing public money from flowing into the pockets of middlemen.
  • By introducing administrative reforms to cut down unproductive growth of personnel and government expenditure.

Now the need of the time is to bring meritocracy in all the right places and then everything will work well.