A case for caste census

As the Supreme Court has ruled that conducting a caste-based census is against the law, the people would like to know what steps the Prime Minister will take to sustain the policies of reservation.

M. Karunanidhi, Dravida Munnetra Kazhagam president, and other leaders of the party watching the procession taken out by the DMK on January 23, 1994, to press for the continuation of the existing scheme of 69 per cent reservation.

IN its judgment of November 7, 2014, the Supreme Court set aside two orders of the Madras High Court that had directed the Centre to conduct a caste-based census. In the judgment of October 2008, the Madras High Court observed that a caste-based census would increase the percentage of reservation in favour of the weaker sections. In May 2010, the Madras High Court reiterated that decision. The Supreme Court held that such decisions of the High Court interfered in the government’s domain of policymaking.

In 1951, there were two cases before the High Court of Madras involving reservation for backward classes in public services and in educational institutions: Champakam Dorairajan vs State of Madras and Venkataraman vs State of Madras . The Madras High Court had struck down the Communal Government Order passed by the Justice Party government in Madras Presidency in 1921 that had provided for caste-based reservation. In the appeal, the Supreme Court came to the conclusion that these two reservations were against the law. To validate the policy of reservation, the Government of India took steps to introduce a Bill in Parliament amending the Constitution. Speaking on May 29, 1951, in Parliament on the report of the Select Committee that was set up to look into the First Amendment, Prime Minister Jawaharlal Nehru said: “Now I don’t for an instant challenge the right of the High Court of Madras, to give the decision…. Nevertheless, while it is quite valid and we bow before the decisions of the court, the fact remains that we are faced with a situation for which the present generation is not to blame. Therefore, some sort of special provisions must be made. We have to do something for the communities which are backward educationally, economically and in other respects, if we wish to encourage them in these matters. We come up against the difficulty that, on the one hand, in our Directive Principles of Policy we talk of removing inequalities, of raising the people in every way, socially, educationally and economically, of reducing the distances which separate the groups or classes of individuals from one another; on the other, we find ourselves handicapped in this task by certain provisions in the Constitution.”

More blunt and pointed was the speech of Law Minister B.R. Ambedkar. He said: “I have carefully studied the judgments and with all respect to the judges of the Supreme Court, I cannot help saying that I find this judgment to be utterly unsatisfactory.” There were several points of order in the House from the members against disrespect to the higher judiciary. Ambedkar contended: “There is no disparagement of the learned judges at all. The judgment does not appear to be in consonance with the articles of the Constitution.” After furious interruptions, Speaker G.V. Mavalankar tactfully brought peace to the House by observing: “I was thinking whether what he [Ambedkar] expressed was not capable of a different interpretation, viz. that the judgment was unsatisfactory from the point of view of what the government proposed to do.”

Then Ambedkar proceeded on the legal aspects of the issue: “[I]t is really impossible to make any reservation which would result in excluding somebody who has a caste.... it is one of the fundamental principles which I believe is stated in Mulla’s last edition on the very first page that there is no Hindu who has not a caste…. If you make reservation in favour of what are called backward classes which is nothing but a collection of certain castes, those who are excluded are persons who belong to certain castes.” (“Hindu Law” was a notable treatise tracing the developments in the field of Hindu law edited by Dinshaw F. Mulla. Its 21st edition was published in 2013. It is still considered an indispensable work for lawyers.)

The government’s Bill was considered and passed by Parliament on June 1, 1951, and got the President’s assent the following day, resulting in the Constitution (First Amendment) Act, 1951; the date of its commencement was June 18, 1951. This shows how earnest Nehru and Ambedkar, and Parliament in general, were in having the amendment passed to safeguard the benefits of reservation for the backward communities.

In the Indra Sawhney vs Union of India (AIR 2000 SC 498) case, on November 16, 1992, the Supreme Court held that the total quantum of reservation under Article 16(4) should not exceed 50 per cent. The issue came up before the High Court of Madras which said that the State government could continue with its reservation policy in the academic year 1994-95 and that the quantum of reservation should be brought down to 50 per cent afterwards.

69 per cent in Tamil Nadu

Tamil Nadu has had a policy of reservation of seats in educational institutions and appointments to various posts in the Public Services for Other Backward Classes (OBCs), Scheduled Castes (S.Cs) and Scheduled Tribes (S.Ts) from 1921. From time to time, the extent of reservation has been increased in order to meet the needs of the majority of the people. Consequently, in 1992, reservation in Tamil Nadu had reached the level of 69 per cent: 18 per cent for S.Cs, 1 per cent for S.Ts and 50 per cent for OBCs.

At the time, Chief Minister Jayalalithaa and the Tamil Nadu Assembly were quite committed to upholding the 69 per cent reservation. A special session of the Tamil Nadu Assembly was held in November 1993 to resolve unanimously that the Union government should make a constitutional amendment to allow the continuation of the State’s reservation policy.

At that crucial time, P.V. Narasimha Rao was serving as India’s 10th Prime Minister (1991-96). Politically, he was the first Prime Minister from the non-Hindi-speaking south of India. In the 1991 general election, the Congress contested in 487 constituencies and succeeded in getting only 232 seats. Hence, the Congress led a minority government. Further, Narasimha Rao himself was not a Member of either House of Parliament. (He later contested a byelection and got mammoth support.) Narasimha Rao, who preferred to be a Chanakya, went through the ordeal so discreetly that none of the opposition parties was prepared to topple his government. Once, when they moved a no-confidence motion against the government, it was easily defeated through the open distribution of bribes to some members.

When Jayalalithaa needed the help of the Union government to protect Tamil Nadu’s 69 per cent reservation, Prime Minister Narasimha Rao readily came forward to support her. The Union Home Minister consulted the leaders of the major political parties, and they conceded that the Tamil Nadu government’s demand was justifiable. The Tamil Nadu government got the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services Under the State) Bill, 1993, (Tamil Nadu Act No.45 of 1994) passed.

On its part, the Union government introduced in the Rajya Sabha on August 24, 1994, the Bill for the 76th amendment to the Constitution, which sought to amend the Ninth Schedule of the Constitution. On the same day, the Rajya Sabha passed with formal amendments the Constitution (Seventy-sixth Amendment) Act, 1994. The Bill as passed by the Rajya Sabha was considered and passed by the Lok Sabha on August 25. Tamil Nadu’s reservation policy has been well protected by the Ninth Schedule.

Article 341 of the Constitution states: “(1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be, (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” Under this provision, the Union government issued the Constitution (Scheduled Castes) Order, 1950, for all the States and Union Territories of India. See the box for the list of castes given in the order for Tamil Nadu (Part XVI).

Further, according to the 1950 order, the number of the castes in the S.Cs in the States and the Union Territories were as follows: Andhra Pradesh (59), Assam (16), Bihar (23), Gujarat (30), Haryana (37), Himachal Pradesh (56), Jharkhand (22), Karnataka (101), Kerala (68), Madhya Pradesh (47), Maharashtra (59), Manipur (seven), Meghalaya (16), Orissa (93), Punjab (37), Rajasthan (59), Tamil Nadu (76), Tripura (32), Uttar Pradesh (66), West Bengal (59), Mizoram (16), Arunachal Pradesh (16), Goa (five), Chhattisgarh (43) and Uttaranchal (65). This works out to 1,108 S.Cs in the 25 States and Union Territories in India. Sometimes, a particular caste classified as an S.C. in one State may not be acceptable as an S.C. in another State. This variation occurs across districts and taluks within States themselves.

The 61st Round of the National Sample Survey Organisation (now Office), or NSSO, of the Ministry of Statistics and Programme Implementation (Consumer Expenditure, Employment-Unemployment Survey, July 2004-June 2005) gave the religion-wise break-up of S.Cs: Hinduism (22 per cent), Buddhism (90 per cent) and Christianity (9 per cent). The high percentage of S.Cs in Buddhism may be because Ambedkar embraced Buddhism on October 14, 1956, the Buddha’s 2,500th birthday. His conversion persuaded a large number of S.Cs in Maharashtra to join Buddhism. The 61st Round also noted the proportion of S.Ts in Hinduism (7 per cent), Christianity (33 per cent) and Zoroastrianism (16 per cent).

The recent judgment of the Supreme Court held that the collection of data on castes, through a census (or any other means), is against the law. Unless this decision is revised by a higher Bench, the issue will be left to the Union Cabinet to decide.

BJP’s election promise

In its 2014 election manifesto, the Bharatiya Janata Party (BJP) gives several solemn pledges, including the following. On page 11, in the paragraph on “E-Governance: Easy, Efficient and Effective”, the manifesto states: “The BJP believes that IT [information technology] is a great enabler for empowerment, equity and efficiency. The NDA [National Democratic Alliance] government has made IT one of the major thrust areas. India is the IT capital for the whole world.” Further along on that page, under item 10, the manifesto says: “We will…. focus to bring S.C./S.T., OBCs, and other weaker sections of the society within the ambit of IT-enabled development.” On page 15 under the caption “Poor and Marginalised—Bridge the Gap”, it says categorically: “We will… facilitate partnership across all levels of government, civil society, academic and financial institutions in the national mission of poverty alleviation.”

And on page 16, under the title “S.Cs, S.Ts, OBCs, and Other Weaker Sections—Social Justice Empowerment”, it states: “The BJP is committed to bridge the gap, following the principles of Smajik Nyay (social justice) and Samajik Samrasata (social harmony). The social justice must be further complemented with economic justice and political empowerment. Instead of pursuing identity politics and tokenisms, we will focus on empowering the deprived sections of society. Steps will be taken to create an enabling ecosystem of equal opportunity—for education, health and livelihood.”

The Supreme Court has concluded that the conduct of a caste-based census is against the law. As Ambedkar stated in Parliament in 1951 it was not possible to make reservation excluding the caste of the beneficiary under the policy of reservation hitherto followed. The 1950 Government Order included the large number of castes within the community of S.Cs and S.Ts. While bowing to the judgment of the Supreme Court, Nehru took early steps through a constitutional amendment to continue with the policy of reservation.

Now the Indian public, especially the S.Cs, S.Ts, OBCs and other weaker sections, would like to know what political and constitutional steps Prime Minister Narendra Modi will take to sustain the policies of reservation. The BJP’s manifesto, in the last paragraph (page 6) of the preface, under the title “Credibility Crisis”, says that “the biggest challenge that faces India is to restore the credibility of, and trust in the Union Government”. It is left to the BJP, its leaders and members of the government to “restore” the credibility of and trust in the Union government.

Era Sezhiyan is a former Rajya Sabha member .