It has been vehemently argued before a five-judge Constitution Bench headed by Chief Justice Balakrishnan, that the 93rd Constitutional Amendment by which Article 15(5) was included to enable reservation for socially and educationally backward classes was not unconstitutional and violative of the basic structure of the Constitution. It has been strongly remarked that the amendment does not confer unbridled power. Parliament and legislatures are alone the arms of the state to make laws. An amendment of the Constitution can empower them to make particular laws by adding to the empowerment.
In this regard, I would like to reiterate the words of Pandit Jawaharlal Nehru in the Constituent Assembly, while seconding a motion moved by Sardar Patel to abolish separate electorates, wherein he noted as follows:
I am grieved to learn of how far this business of reservation has gone based on communal consideration. It has amazed me to learn that even promotions are based sometimes on communal and caste considerations. This way lies not only folly, but disaster. Let’s 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?”
The specific prohibition of caste as a factor is clearly laid down in Article 15(1), Article 16(2) and Article 29(2) of the Constitution. The prohibitions in the constitutional scheme are in furtherance of the equality code, which is a part of the basic structure of the Constitution. There cannot therefore, be any departure from this prohibition to enable the State to use caste as a criterion for any process of identification.
The most significant factors in the above constitutional scheme to be noted are as follows:
- Except when it is speaking of Schedule Castes, where it uses the word “caste” the Constitution does so to lay down a negative; namely that caste shall not be a ground for discrimination.
- Where the word “caste” is used to single out a group for special care or measures, it is only in regard to Schedule Caste.
- In regard to other matters and contexts, the word “castes” is avoided. Instead, the expressions chosen to be used are “weaker sections” or “socially and educationally backward classes”.
- Article 16(4) spoke only of “any backward class of citizens”.
- Art 15(3), which is the proviso to Art 15(1), spoke only of women and children and no exceptions were envisaged on the basis of caste.
- The only castes that Art.46 mentioned were Scheduled Castes.
- All of the provisions for reservations were qualified by the caveat in Art. 335.
Yet, every determination by the State of the Lists of the backward classes for the purpose of Section 2(j) of the National Commission for Backward Classes Act, 1993 has been without reference to any factor apart from that of caste. The specific requirement of periodic revision as stated in Section 11 of the NCBC Act and in Para 847 of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 have not been followed, and as a consequence, the prevailing Lists have swelled to include several thousand ‘castes’ which are treated as backward ‘classes’, thereby satisfying the political mandate.
The very enquiry of an individual’s caste and any surveys/census on that account would amount to a grave breach of the Constitution and harm the unity and integrity of the nation. Such exercises would perpetuate the ideal of caste and reinforce it rather than hasten its demise. As a consequence, it is humbly stated with the greatest respect that the Court in Indra Sawhney was wholly in error in stating that ‘caste’ could be a factor for identifying the backward classes. It is submitted that caste can never be such a factor, and in this light, the judgment in Indra Sawhney to this extent, ought to be reconsidered.
Further, as stated by a Constitution Bench in the context of a challenge to certain reservation provisions in M. Nagaraj v. Union of India, (2006) 8 SCC 212:
“It is important to bear in mind the nature of constitutional amendments. They are curative by nature. Article 16(4) provides for reservation for Backward Classes in cases of inadequate representation in public employment. ………….If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. …………..However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of ‘guided power’.”
The Constitution (93rd Amendment) Act, 2005 is such an exercise of unguided power as it creates an arbitrary exemption for minority institutions from granting admissions to SCs, STs and Backward Classes. The State has failed to exercise the controlling factors and this has resulted in reverse discrimination. No data has been produced to justify the exemption implicit in the provision and, therefore, the basis for identifying the Backward Classes is antithetical to the constitutional scheme. As a consequence, the Constitution (93rd Amendment) Act, 2005 and the Central Educational Institutions (Reservation in Admission) Act, 2006 ought to be struck down.
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SUMANTRA SINHA is a fourth year student pursuing B.A. LL.B (Hons) from National Law
Institute University, Bhopal. |
